'Undesirable' takes on new visa laws

One of the first casualties of the new immigration regulations has launched an urgent application in the High Court in Cape Town to interdict the implementation of the controversial rules, listing Home Affairs Minister Malusi Gigaba and President Jacob Zuma as respondents.

American citizen Shaima Herman -- who was now been declared an "undesirable person" in SA in line with the new regulations -- has been waiting for the approval of her spousal visa for two years, during which period she visited the Home Affairs offices at least 14 times to follow up on her application. She is in a permanent relationship with a South African, and this qualifies her for a spousal visa.

Her court application came as economists and industry bosses warned that the regulations could scare investors off while driving away the scarce skills that the South African economy desperately needs.

Economist Chris Hart said of the regulations: “everything that we do not need!"  Denis Lille, CEO of the Cape Film Commission, shared Hart’s sentiments. Lille said the commission has received inquiries from international film makers looking to shoot their films in South Africa recently with a potential of ploughing R2.5-billion into the local economy but that could be jeopardised by the new regulations.  “Inbound international productions and some of the major stars coming to Cape Town may be compromised because of the new regulations,” said Lille. “They may decide not to come here and go to a country that is user friendly with work visas.”

Emmy award winning series Homeland, which is due to start filming it fourth season in Cape Town this month, could be hit by costly production rescheduling because of the new visa regulations.

On Tuesday last week, a day after the new regulations came into effect, Herman was declared "an undesirable person" in South Africa and fined during a trip to Namibia. Not even an official document showing that her application was still pending could save her.

The regulations gazetted on May 22 dictate, among other things, that a foreigner married to a South African must return to their home country and apply for a spousal visa at the South African mission there. Professionals such as immigration practitioners and lawyers will no longer be required to represent applicants. 

Herman and Cape Town immigration lawyer, Craig Smith, brought an urgent application in Western Cape High Court yesterday to interdict Gigaba from implementing the regulations. The matter will be heard on Wednesday next week.

Smith said the regulations would fail the constitutional muster and branded them  “xenophobic laws”. He said Herman’s constitutional right to be with her partner had been infringed.

“She is the first of the many who have unfortunately just gone through the airport over the last few days who been branded undesirable, in essence she is prohibited from coming back,” said Smith.

“She is in a permanent relation with a South African and she qualifies for a spousal visa. She contacted the department no less than 14 times for updates only to be given the run around due to Home Affairs’ own inefficiency she is basically being separated from her South African partner for five years.”

The new directive determines that foreigners may not leave the country while the application is being processed.

Smith said Herman is in Portugal and could not be reached for comment