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VFS: So many questions, such little time

September 22, 2016


The recent article by Southern African Tourism Update’s senior reporter, Dorine Reinstein, titled ‘New visa regime’s astonishing link to Guptas, Parliament hears’ provided some insight into one of South Africa’s most pressing and concerning tourism issues.

Over the past few months we have seen and heard so many questions about VFS; from the Guptas and their involvement, to who are VFS, who owns VFS, what their role is, whether South Africa’s immigration policy has become a private matter and whether the government is still involved. These are questions on the minds of not only the expat community but also many South Africans.  Why are these questions still being asked?

A time for celebration

If the government implements or wishes to implement a process that is meant to streamline the South African immigration process, surely this should be celebrated? I don’t think VFS is the problem. VFS is a global company that handles visa applications to many countries, from many countries. The fact that their system was implemented is not surprising as it’s been tried and tested throughout the world. But why then is the very existence of VFS Global in our South African immigration regime causing so much mayhem?

The answers, I believe, are found in the Immigration Act and its regulations. Neither the Act nor the regulations contemplate the existence of a separate entity/organisation at which visa/permit issues are filed. In fact, the immigration regulations expressly provide that visa/permit application must be made “at any office of the Department” (which is defined in section 1 to mean “the Department of Home Affairs”), or at a foreign mission of the Republic. Section 3 of the Immigration Act furthermore provides that while the Minister and/or DG may delegate any power conferred on him or her, these powers may be delegated to a person or category of persons in the public service.  VFS and the DHA will of course argue that no powers in terms of the Immigration Act or the regulations have been conferred on VFS or the staff of VFS.  However, many foreigners will confirm that they have tried to submit applications to VFS for visas but VFS refused to accept their applications (notwithstanding the fact that some of these applicants are the spouses, parents or dependent children of South Africans and therefore have a constitutional right to reside in South Africa with their South African spouses, parents or children) because of the following reasons:

1.            Applications are non-compliant;

2.            The application is within 60 days of the expiry of the current visa;

3.            The applicant does not have the correct documentation.

The refusal to accept applications is not an adjudication function.  By advising a client that they do not comply or they cannot file their application, does this not crossover to the function of the official vested with the power to adjudicate an application?

The DHA has an obligation in terms of the Preamble to the Immigration Act to inter alia issue visas and permanent residence permits expeditiously without consuming excessive administrative capacity and to ensure that immigration laws are efficiently and effectively enforced reducing the pull factors of illegal immigrations.

If the answers to most of the questions are found in the Immigration Act and the processes and procedures are set out clearly in the Immigration Act and its regulations, why is there so much confusion, unlawfulness and inconsistencies in relation to the immigration regime and its application?

The questions we should really be asking

The DHA’s defence of the above would of course be that they do not want to be burdened nor do they have the capacity to deal with ‘incomplete applications’ or applications which will no doubt fail because they are non-compliant and that the implementation of VFS was to ensure that the processing of applications are efficiently facilitated, administered and managed. The DHA appears to have an answer for any issue one may raise in relation to VFS’s functions.  However, what I would like to know is what their answers to the following are:

1.            Why did the DHA decide to outsource the function of accepting applications and dispatching outcomes to a private entity who closes its office over the festive season, which means that foreigners either become illegal during this time (rendering them vulnerable to arrest, detention and deportation) or having to incur the expense to leave South Africa only to return and not be in a position to apply for a new visa in South Africa?

2.            Why did VFS win the tender for the visa facilitation service and were there any other applicants?

3.            Why has the DHA handed over its powers in terms of the Immigration Act and the Regulations to VFS?

4.            Why does the applicant bear the cost of the VFS service charge of R1 350?

5.            How is the R1 350.00 service fee calculated?

6.            Who decided on the amount and who decides when it can or will be increased?

7.            If a spouse or child of a South African is not able to pay the R1 350.00 service fee, why are they allowed to be turned away (effectively saying that they cannot live in South Africa with their South African spouse/parent)?

8.            Why does VFS charge to accept an appeal application but the DHA doesn’t?

9.            Why are there so many unlawful refusals?

10.          Why does VFS insist that waiver applications or work authorisation applications be submitted in person when the Act and regulations only require personal applications to be made in respect of visa or permit applications (waiver applications or work authorisation applications are not visa/permit applications)

11.          Why is VFS allowed to turn foreigners away and give foreigners legal advice?

12.          Why does the DHA hide behind VFS despite its obligations in terms of section 195 of the Constitution of the Republic of South Africa; and

13.          Why does the DHA protect VFS?

VFS is not the problem

The problem at the end of the day is who benefits from this? VFS have seemingly nothing to do with the corruption that lies behind the rest of it. I don’t think the governments of all the countries they operate in would allow a crooked organisation to handle such an important function. As we know and have seen, VFS is the front door to the DHA.  No person may submit an application, enquiry or follow up with the DHA without going through VFS.  In fact, the DHA has slammed the door in the face of the public (again in contravention of section 195 of the Constitution) which begs the question “why”? Why is the very existence of VFS in South Africa (and only in South Africa) causing so much controversy?  Is the DHA indeed a victim of the “golden handcuffs”?  Foreigners and citizens alike would like the answer to this question.

Originally published in Daily Southern African Tourism Update, 5 May 2016 08:18.

De Saude-Darbandi Attorneys | Cape Town, South Africa

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