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Letter on refusal to extend Zimbabwean Exemption Permit

- Lawyers for Human Rights

Civil society organisations write to Minister of Home Affairs about the decision to no longer issue extensions to Zimbabwean Exemption Permit holders

Dear Minister Motsoaledi

RE: DECISION TO NO LONGER ISSUE EXTENSIONS TO ZIMBABWEAN EXEMPTION PERMIT (ZEP) HOLDERS

1. We refer to the above, the Ministry of the Presidency’s statement on the Cabinet Meeting of 24 November 2021 made on 25 November 2021, and Immigration Directive 10 of 2021 dated 29 November 2021. A copy of the statement and directive is attached as “A” and “B”.

2. We write on behalf of Zimbabwean Exemption Permit (ZEP) holders currently residing in South Africa whose lives will be thrown into disarray as a result of cabinet’s decision to no longer issue extensions to Zimbabwean ZEP holders almost with immediate effect.

3. The organisations listed below write to you to firstly appeal to you to rescind this decision and directive on purely humanitarian grounds. Zimbabwe remains a country in turmoil and continues to experience serious economic and political challenges and violence. Further, given that this special dispensation covers a time span of over a decade, many Zimbabweans have built their families, lives, and homes in South Africa. Estimates indicate that up to half a million children will be affected by this decision resulting in severe trauma through uprooting their lives in South Africa and exposing them to trauma and suffering in Zimbabwe, undermining the best interests of the child principle enshrined in South Africa’s Constitution.

4. In amplification of the above, thousands of Zimbabwean ZEP holders have positively contributed to South Africa’s economy, communities, and society more broadly. The cabinet’s decision to no longer issue extensions to ZEP holders will not only impact the individual permit holder but South Africa as a whole, at all levels of society, will also experience a great loss should these permit holders be forced to return to Zimbabwe.

5. We further note that the ZEP was implemented by the Department of Home Affairs (DHA) with the aim of creating a record of Zimbabweans who had, until then, been living in South Africa undocumented, granting them amnesty, and regularizing undocumented Zimbabwean nationals living in South Africa. The implementation of the ZEP further alleviated the burden placed on the asylum system.

6. We are concerned that the above decision is counter to the DHA’s initiatives and will likely create a category of undocumented persons in South Africa undermining any work that the Department of Home Affairs has undertaken in the past to regularize undocumented Zimbabwean nationals living in South Africa.

7. Additionally, those ZEP holders who changed over from the asylum system to the immigration system are now at risk of refoulment. We are deeply concerned that the cabinet’s decision will directly result in people facing persecution, harm, and loss of life.

Immigration Directive 10 of 2021 and Ministry of the Presidency: Statement on the Cabinet Meeting of 24 November 2021

8. In terms of the Immigration Directive 10 of 2021, holders of the ZEP “should apply for mainstream visas that they qualify for and ensure that their applications comply with the provisions and requirements of the Immigration Act and Immigration Regulations…” and that “[a]ll applicants with a ZEP must be allowed to travel freely in and out of South Africa until 31 December 2022.”

9. Additionally, applicants are required to submit their passports together with their visa applications. As this process is likely to be lengthy, applicants will be without their passports for long periods of time resulting in them not being able to “travel freely in and out of South Africa until 31 December 2022.” As you may know, many ZEP holders are employed in South Africa and will not be able to return to Zimbabwe to lodge a visa application without compromising their employment given the challenges. Additionally, many children of ZEP holders are enrolled in either primary, secondary, or tertiary school for 2022 and will also need to return to Zimbabwe to apply for a visa in terms of the Immigration Act compromising their education for reasons mentioned above.

10. Further, although applicants who are aware of the option to apply for a waiver through VFS Global offices in South Africa will likely do so, we are concerned about the burden this will place on VFS Global and the Department of Home Affairs. Many of Lawyers for Human Rights’ clients who have applied for visas through VFS Global in South Africa have waited for the outcome of their applications from the Department of Home Affairs for longer than 12 months and in some cases, 2 years. This exceeds the grace period for ZEP holders.

11. Immigration Directive 10 of 2021 further states that “[a]ll companies, employers, learning institutes and banks are too kindly note that applicants who are in possession of a ZEP expiring on 31 December 2021 must be allowed to continue with their services, provided that they submit proof of application for a main stream visa in terms of the Immigration Act and Immigration Regulations. Proof of application must be a VFS receipt.”

12. We submit with concern that a VFS receipt is not a form of valid documentation. Through our organisations’ experiences, migrants are regularly denied services, including healthcare and education, and are arrested due to their irregular documentation status. This includes those who have received appointment slips for 2022 to apply for asylum at a respective Refugee Reception Office and those with VFS Global receipts for pending visa applications or appeals.

13. The Ministry of the Presidency’s statement on the Cabinet Meeting of 24 November 2021 is also silent on this. Clause 6.3 of the Statement holds that “[f]ollowing its deliberations, Cabinet decided to no longer issue extensions [sic] to the Zimbabwean special dispensations. However, it decided on a 12 months grace period at the expiry of the current ZEP.”

14. Clause 6.4 states that “[d]uring this period, the holders of this permit should apply for other permits appropriate to their particular status or situation. At the expiry of this 12-month period, those who are not successful will have to leave South Africa or be deported.”

15. The above statement makes no provision for the legal status of people who will wake up on the 1 January 2022 and have expired permits in their hands. The implication of this is already being felt. Children are being denied the opportunity to register for grade 1 and grade 8, employers are refusing to renew contracts of employment for those working as domestic workers because their permits will be expired, and banks are denying services or closing and/or freezing accounts of individuals affected.

16. Cabinet’s statement and the Department of Home Affairs’ subsequent Immigration Directive, both of which contain sparse and unclear information, has sparked panic and uncertainty for many Zimbabweans living in South Africa.

17. Section 195 of the Constitution underscores the basic values and principles governing public administration. The section provides “Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:… Public administration must be accountable. Transparency must be fostered by providing the public with timely, accessible and accurate information…”

18. Cabinet in the issuance of this directive fails to provide written reasons as required by section 33 of the Constitution which provides that   “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons”

19. The Promotion of Administrative Justice Act of 2002 (PAJA) gives credence to Section 33 of the Constitution. Section 3(2)(b) in particular provides that, in order to ensure procedural fairness, all persons whose rights are materially and adversely affected by administrative action are entitled to;

    • adequate notice of the nature and purpose of the proposed administrative action;
    • a reasonable opportunity to make representations (the audi alteram partem principle);
    • a clear statement of the administrative action;
    • adequate notice of any right of review or internal appeal, where applicable; and
    • adequate notice of the right to request reasons in terms of section 5 of PAJA

    20. Whilst the ZEPs were enacted through section 31(2)(b) of the Immigration Act also referred to as the  “ministerial discretion”. This discretion is not absolute. The Minister is still accountable under both the Constitution and PAJA.

    21. In the absence of the Presidency and/or the Department of Home Affairs rescinding its decision, subsequent statement, and immigration directive, we further seek clarity on the following –

      • What is the immigration status of ZEP holders whose permits expire on 31 December 2021;
      • Will the grace period be extended to those who submitted applications before 31 December 2022 but have not yet received the outcome of their applications before the end of the grace period;
      • Will former asylum seekers be permitted to submit an application for asylum again;
      • What steps has or will the Department of Home Affairs take to disseminate this information to affected persons; and
      • What steps has or will the Department of Home Affairs take to disseminate this information to Government service providers, banks, employers, police officials, and other service providers.

              22. We kindly request your written response by no later than close of business on 17 December 2021. Should you have any queries regarding the above, you may contact sharone@lhr.org.za. 

              Yours faithfully,

              1. LAWYERS FOR HUMAN RIGHTS
              2. ZIMBABWE SOLIDARITY NETWORK
              3. CONSORTIUM FOR REFUGEES AND MIGRANTS IN SOUTH AFRICA
              4. AFRICAN DIASPORA WORKERS NETWORK
              5. JESUIT REFUGEE SERVICES
              6. UNITED FRONT
              7. CENTRE FOR SOCIOLOGICAL RESEARCH AND PRACTICE
              8. ZIMBABWE EXILES FORUM
              9. CENTRE FOR APPLIED LEGAL STUDIES
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