A dancer recruited in Moscow, who was found to have a fake work visa in Cape Town, has become an unlikely beneficiary of the ongoing war between Russia and Ukraine.
The woman sued the home affairs minister and the department’s director-general in the high court in Cape Town after being declared a “prohibited person” in SA and ordered to leave the country.
However, the dancer, who cannot be named to protect the identity of her minor children born in SA, fought the decision on grounds that included it not being in the best interest of the children were she deported “in light of the war situation that prevails in Russia”.
The court heard she was recruited in 2010 to work as a dancer at Mavericks Revenue Bar in Cape Town. She obtained a work permit through the SA embassy in Moscow, before taking up the offer, which was valid until July 2013. The minor children’s father is South African.
She explained to the court that her work visa was arranged by an immigration consultant in 2015 and was valid until July 2020.
She discovered the visa was not authentic in November 2018, after being arrested for fraud, shortly after the first child was born. The charges related to the “acquisition and possession of a fraudulent work visa”. At the time she was cohabitating with the child’s father.
The court heard that before her initial work permit expired in 2013, she successfully applied for a study visa to pursue a business management course at the College of Cape Town. The visa was valid until 2015.
“Being in possession of a fraudulent visa, the dancer was designated as a ‘prohibited person’,” read a judgment handed down electronically on March 10 by judge Matthew Francis.
The baby was born prematurely and spent about 35 days in an incubator — at that time an immigration officer opposed her release on bail and she remained behind bars for three weeks while the baby was in ICU.
“She was eventually released on bail on December 19 2018. After four appearances in Somerset West magistrate’s court, the charges relating to the alleged fraud were provisionally withdrawn,” the judgment reads.
According to the judgment, her spousal visa was rejected, and she appealed that decision by the home affairs director-general in February 2019. It was dismissed two months later on the grounds that she had “submitted a fraudulent visa” to the department and was “instructed to depart” the country. The woman then approached the high court to have the director-general’s decision reviewed. The application was granted and the court remitted the decision to the director-general for reconsideration. But the director-general dismissed her representations as unsatisfactory in December 2021.
It was pointed out to the director-general that the directive issued to the woman to leave South Africa would have the obvious and direct consequence of her having to either abandon her two minor children or leave with them for Russia which is in a state of war.
— High court judgement
In a letter to the woman, the director-general maintained she was not a “victim”.
“I find your explanations and attempt to shirk any responsibility and liability for being found in possession of a fraudulent visa/permit insufficient. The attempt to instead place responsibility for the action of the agent of your choice when you are conversant with the office DHA (department of home affairs) is therefore unreasonable and unacceptable,” the letter read.
She went back to the high court to have the dismissal reviewed. Francis said the fact that she did not sue the immigration consultant or lay criminal charges did not “in itself indicate that she was complicit in the fraud”.
“The question that needs to be asked, is why the department did not pursue the immigration consultant or investigate the circumstances in which she managed to obtain the visa,” read the judgment.
“There is no suggestion in the rejection letter that she provided an explanation that was false and her application was certainly not turned down on this ground. The application appears to have been rejected primarily, if not exclusively, on the basis that she obtained a fraudulent visa.”
She informed the director-general that she was the primary caregiver of the minor children and “primary source of their financial support”. Though the relationship with their father had ended, he played a role in their lives.
“It was pointed out to the director-general that the directive issued to leave South Africa would have the obvious and direct consequence of her having to abandon her two minor children or leave with them for Russia, which is in a state of war,” the judgment reads.
Regarding the children, the director-general said the department was “sympathetic to your situation as a parent to minor children and I have taken into account your allegation that you are a caregiver and source of financial support to them”.
“I, however, bring to your attention that home affairs processes hundreds of thousands of applications with similar circumstances and this circumstance is neither extraordinary nor unique.”
Francis said the director-general, in his rejection letter, “views the children as mere appendages of their mother and did not consider their interests, separate and apart from her”. The judge said SA is “bound by international instruments which recognise and assert parental rights and the right to dignity of children their parents”.
“The woman’s home county [Russia] is currently in a state of war ... South Africa cannot refuse to allow a foreigner into the country or force them to return to their country if in their own country their life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other event seriously disturbing or disrupting public order in either part of the or the whole of that country. The director-general does not appear to have considered this at all.
“If the woman is forced to return to Russia without her children a real risk exists that the minor children may become alienated or estranged from her since there is no guarantee when (or indeed if) she will be able to return to South Africa given Russia’s state of war. On the other hand, in light of the war situation that prevails in Russia, it is doubtful whether it will be in the best interests of the children to emigrate to Russia [with their mother] if deported,” reads the judgment.
Francis overturned the director-general’s decision and declared the woman “not to be a prohibited person”. He directed the director-general to authorise that she remain in SA pending her application for status within 10 days of his order.
Francis ordered the minister and the director-general to pay legal costs.
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