The Minister of Home Affairs and his Director-General (DG) may find themselves in legal hot water if they fail to issue a Critical Skills Work Visa within 30 days to a British professional who has been at the mercy of departmental delays for nearly two years.

The High Court recently found the Minister and DG in contempt of court for failing to comply with a 2024 court order directing that the visa be issued “forthwith”.  The Minister and department must now act quickly. Failure to do so could have severe consequences, the court warned. 

Benjamin van Zyl, Immigration Consultant and Admitted Attorney at Xpatweb who handled the individual’s visa application and litigation process, emphasises a particularly critical aspect of the ruling: while the visa is being processed, or in the event of further legal proceedings, the applicant is allowed to enter, reside and continue work in South Africa, exit and re-enter and re-exit. The court barred the DHA from arresting, detaining or declaring the applicant undesirable or sending him back to Britain while he awaits the visa.

Van Zyl notes that the DHA has in recent months made significant progress in clearing the visa backlog under the leadership of Dr Leon Schreiber, who was appointed Minister in June 2024. But the department still battles to clear appeals flowing from the backlog inherited from the previous administration.

Earlier this year, when celebrating the eradication of the visa processing backlog, Minister Schreiber said 2025 will be a year of major reform at Home Affairs. Besides modernisation and making use of new technology to enhance service delivery, the Minister indicated he wants DHA adjudicators to focus on clearing the appeals backlog this year. 

Van Zyl welcomes this undertaking by the Minister, especially after Xpatweb has seen an increase in rejections they believe to be factually incorrect. The drive to expedite visa processing appears to have introduced new challenges, including an increase in the rejection of applications and a surge in consequent appeals.

Van Zyl stresses it is crucial to ensure that the initial application meets all the respective legislative requirements. It is equally important that an appeal has adequate merits for it to proceed. 

Complex Cases Still Under Review

Despite progress with visa processing, certain complex and historic cases remain under review. One such matter involves a wealthy UK citizen who first applied for a Financially Independent Permit to reside permanently in South Africa five years ago. She demonstrated to DHA twice that her net assets far exceed the required R12-million threshold and appealed two DHA rejections.

Van Zyl states that after a prolonged time of repeated delays and the department rejecting her application, the woman approached the Court to expedite the resolution of her pending appeals. 

He explains after the applicant initially applied for Permanent Residence under the financial independence category, she waited three years only to have her application rejected by the DHA. She then submitted an appeal, reaffirming that her net worth significantly exceeded the required R12-million. During this period, she maintained long term temporary residency in South Africa on a four-year Retired Person’s Visa while awaiting the adjudication of her PR appeal. 

Another two years of back-and-forth with the DHA ensued, culminating in yet another rejection, this time of her application to renew her Retired Person’s Visa. Van Zyl notes that the rejection came as a surprise, particularly given that she had previously been granted a Retired Person’s Visa, which should have affirmed her continued eligibility, along with the full visa renewal submission with supporting documents.

Spousal Visa Case Highlights Importance of Legal Clarity 

In another example, a long-time resident who had been issued multiple Spousal Visas found himself struggling to renew his status, despite having applied for Permanent Residence in 2018. Thanks to judicial intervention, he eventually received his Permanent Residence Certificate, reinforcing the applicant’s long-standing compliance with immigration laws. 

This case highlights the fine balance the Department must strike between ensuring compliance and evolving processes in a system where many court applications are years in the making.

Progress, Transition and Moving Forward

Under new leadership, the DHA has on several occasions committed to prioritising the modernisation of the immigration system. While challenges remain, particularly in resolving older, long pending cases, the overall direction is positive, and meaningful results are beginning to show.

Whilst the implementation of a more efficient and transparent visa system will ultimately benefit all parties concerned, legal intervention continues to serve as a necessary safeguard in certain instances, especially where legacy backlogs are involved. 

Written by Xpatweb