Chris Watters
The responses to these FAQs are based on the provisions of the Refugees Act 1998, and
Immigration Act, 13 of 2002, as amended, but excluding the provisions of the 2011 Amendment Acts in respect of both the principal Acts, unless otherwise stated.

1. Do I need to use an attorney when trying to apply for a residence permit in terms of the immigration act:
The position of the Department of Home Affairs is as follows: (a) it is quite able to advise anyone on what permit to apply for and to assist them with that application but (b) if a person wishes to use a representative or get legal advice, that is their responsibility entirely.

Under the current Act, services contemplated in the Immigration Act can be rendered by an attorney, advocate or a registered immigration practitioner. It should be pointed out that the requirements to be registered as an immigration are massively different to those to be an attorney. Currently the only requirements to be registered as an immigration practitioner is that one must be a SA citizen, have passed a three hour multiple choice exam on the provisions of the Immigration Act and comply with a prescribed Code of Conduct. On the other hand, to be an attorney, one has to have a minimum of a four year university degree in law; served a two year course of articles; attended a compulsory 8-month practical legal training course administered by the Law Societies; passed the law Societies Board Examinations; applied to court for admission and been admitted as an attorney; have compulsory professional indemnity insurance; subject oneself to the rigours of professional ethics of and scrutiny by the statutory Law Societies which now includes compulsory continuing legal education; if one is running one own firm, the firms Trust accounts have to be audited annually and, also annually, obtain a Fidelity Fund Certificate to practice. It must be said that it is widely acknowledged that the Department of Home Affairs does not implement its Code of Conduct in respect of immigration practitioners.

In some cases the permit to be sought and the requirements may well be straight forward. But where there is doubt or the matter is complicated, the applicant would be better served by at least consulting with an attorney well-versed in the field and seeking advice as to the way forward.

However when it comes to issues of immigration enforcement such as where a person has overstayed, has a false permit or has been detained, been ordered to leave the country or been refused entry, engaging the Department directly and not using an attorney in this field, has often had unfortunate consequences for the person involved.

2. Do I need to use an attorney when trying to apply for status in terms of the refugees act:
In terms of the Refugees Act, 1998, a person applying for ‘asylum’ or ‘refugee status’ (the two terms mean the same thing) has to apply in person at a Refugee Reception Office.

You can however be assisted at the interview by an attorney.

If your application for asylum is refused, you do have an automatic right of appeal to the Refugee Appeal Board. It is advisable to at least consult with an attorney to assist you in drafting that appeal.

You can also be assisted by an attorney at the appeal hearing.

3. I am a SA citizen or I have permanent residence in SA – and my life partner or spouse wants to settle in sa with me: What do we do and will it help our application if we first get married or conclude a civil union?
In terms of both the SA constitution and practice, the DHG does not dictate a morality to couples and require that they first marry or conclude a civil union.

Where the expat is cohabiting and is in a long term relationship with a citizen or permanent resident, he or she is deemed to be the “spouse” of that citizen or permanent resident. As such he or she qualifies in principle for a relative’s permit. And if the expat needs or wishes to work, he or she can benefit from the special dispensation extended to such spouses in term of which most of the usual requirements specific to a work or business permit, are waived.

It is generally prudent to apply for the correct permit before the expat spouse leaves for SA. The Department sometimes takes the view that in not disclosing the fact of the relationship to the Embassy / Consulate and getting he correct permit in advance, prior to leaving, the expat has entered SA on a fraudulent basis which can have massive consequences for the couple.

4. I have a work permit that allows me to work for abc company that is valid for another year. I have been offered a post at another company in the same field, can I just use the same permit?
The short answer is No; that would be illegal.

You need to change your permit and your new employer has to show Home Affairs why it should be allowed to engage a foreign national. You do need to take care in managing the ‘transfer’ because your current permit lapses as soon as you leave your current employer.

You can however change employers without the prior consent of Home Affairs if you have either an exceptional skills work permit or a quota skills work permit. In the latter case you do need to submit details of your new employer to Home Affairs; this will not affect your annual reporting requirements which continue to apply.

5. I am in a life partnership with or am married to a South African and my partner wants to break up with or divorce me. What can I do as I want to continue staying in South Africa.
This is an all too frequent tragedy and can be massively complicated if children are involved.

There is no clear answer save that in some situations, the matter can be resolved whereas in others, sadly there may not be a solution. Everything depends on your circumstances.

You would be strongly advised to seek legal advice as a matter of urgency.

6. I am a refugee in south africa and I want to get a work- or business permit because of the restrictions imposed by being a refugee. Can this be done?
The short answer is that in principle it can be done.

However there are no special dispensations for refugees or asylum seekers who wish to do this. You have to comply in all respects with the various requirements of the work or business permit just as any visiting foreign national would, with one or two minor exceptions.