Journey to the Center of Permanent Residence

On the momentous occasion of my receiving my permanent residence the other day, it presented an opportunity to look back and reflect upon the memories. This is not going to be a pretty flashback montage, however, it plays out more like a horror story. So it’s interspersed with beautiful pictures of my homeland to keep you going through all those lawyery facts.  Let us begin.

Picture a hopeful couple with 4 willing children, the oldest son being 16, the youngest 8. Their life in 18 pieces of luggage, packed up with a vision to provide opportunities for their children in this new land that they could not provide in their birth country of Zimbabwe.

Facts:

1.Arrived in South Africa on 14th May. Lea was on a 90 day visitor’s visa.

2. On enquiry about the application for a “spousal visa*,” they were informed that Lea would need police clearance from Zimbabwe. She thus returned to Zimbabwe in early August for 3 days in order to obtain the police clearance and on her return was issued another 90 day visitor’s visa. *Turns out, there’s no such thing. It’s a “relative’s” visa.

3. They began the visa application process immediately after her return, and due to Post Office strikes, the South African police clearance took 8 weeks to come from Pretoria. Once they finally had all documentation together, the application was made on 27th October, but received a refusal on 27th November.

Editor’s interjection:

The casual “return to Zimbabwe for 3 days” was no small thing. Besides having to pay for it whilst we were trying to settle in a new country, it was very stressful to be away from the family. Heath was thankfully flexible enough to cope with everything, and friends were able to help out with lifts, etc. Everyone survived. I lived it up for 3 days without any household responsibilites at my sister-in-law’s. I actually read a whole book.

Back to facts:

4. They followed the procedure to appeal to the Director General in writing within 10 days of the refusal letter, submitted  4th December 2014, again denied on the 5th May 2015.

5. Second appeal submitted on 18th May 2015.

Somewhere in the middle of this mayhem and talking to everyone, we discover that on the 26th May 2014 – please note: AFTER we had arrived in South Africa- that the immigration law had been amended, to say that if one wanted to change the status of their visa (e.g. from visitors to relative’s) they would have to go back to their country of origin and apply from there, awaiting the outcome there. This could take up to 2 years, and when trying to return, would be declared ‘undesirable’ and have to wait for that to be lifted by immigration authorities before being allowed entry.

What, camp out at the airport, then? Being declared ‘undesirable’ doesn’t really help one with one’s self esteem. So, on the 3rd June 2015, we decided to go to a Big Lawyer.

6. Upon hearing about the case, Craig Smith responded: The primary legislation in terms of  Final Immigration Regulations 10(6)  allow Home Affairs to reject as no change of status is permitted from visitor to spouse. This is further endorsed in the regulations. If you ask me this is unconstitutional since we are dealing with a spouse to SA citizen and SA children. Read Dawood vs Minister of Home Affairs (google it) which is a Constitutional Court case and is applicable in this case. So too, rights of dignity between spouses and rights for children to be brought up by both parents and not to be separated. This appeal will NOT be overturned by simple appeals. It will only work if one goes to court.

Craig also explained that immigration laws actually favour foreign residents over SA residents… so if Heath was from France and I was from Mogadishu, I would be able to get my visa. Crazy crazy.

7. The lawyers- immigration lawyer Craig Smith, together with junior advocate Adam Brink, and senior advocate Anton Katz, are very positive and optimistic about the outcome of the case. It will help many other people in the future, as no-one has challenged this particular point of law until now.

It is costly, but if successful, we stand to get 75% compensation from the case. So we live on bread and water for several months (turned out to be years).  

8. Papers were lodged on 2nd July 2015, and Home Affairs have until 30th July to revert back with their plan of action- to either settle or proceed to court.

We did an interview with the Cape Argus on advice from our lawyer to get public support and portray the human element of our story. The story was pretty factual, and whilst we have been uncomfortable with the very public nature of this whole thing, that is what it is; especially when an old schoolmate then posted the article on Facebook, and I woke up to a bajillion messages from people I hardly knew. Media! See another article here.

Whilst I never ‘feel’ stressed out, the knots in my back, and the regular floods of tears may tell otherwise. The boys are mostly sheltered from the hype, the older two are obviously more aware of everything, and we are very positive and upbeat when discussing it with them. We completely trust God to bring about success in this case, and to set a precedent of justice in the immigration laws to help others. 

9. Home Affairs oppose on July 16th, 2015. It is now for them to file their answering papers so it can be seen what their defence is.

10. Update from lawyers on 12th August 2015: We have received the answering papers for the case from Home Affairs and are in the process of preparing our replying papers….Anton, Adam and myself remain of the view that the case is a good one.

11. Update from lawyer, 19th November 2015: Whilst we are all quietly confident that we will succeed in the matter, it seems that the extent of the success is still a bit uncertain. What I mean here is whether they take the section 10(6) on review to the constitutional court after declaring it unconstitutional or do they provide your relief and make the constitutional declaration less of an issue?

12. Finally, on 29th January 2016, received notice that the case had been won!

Let that just sink in while you work out the dates. Eighteen months.

13. Lawyer update: now the Dept of Home Affairs are obliged to issue a visa to Lea. We will be writing to them on this matter now. I suspect that the Dept will appeal this as it is precedent setting.

And then from there, it was just more waiting, punctuated by bajillions of do-you-know-what’s-happening emails. In February, we were waiting to see if the state would appeal the judgement. If so, and it succeeded, then the judgment will be suspended.

14. On the 8th April 2016- Lea was issued with a 3 year visa, then submitted application for Permanent Residence on the 29th, as it had to be submitted within 3 months of visa being issued.

Bajillions of emails. And more prayer, faith, hope.

Early 2018, lawyers did a follow up of my PRP application, forcing it to be heard in court, and requesting that the state deliver the outcome.

15. PRP outcome was collected on the 19th May 2018- … a favourable response! Relief. Gratitude.

The End.

Of course, we praise God for such a wonderful outcome. We feel like a weight has been lifted off our shoulders. Our heartfelt thanks to all who prayed and believed with us.

May the lessons learned in the chaos or the quiet lead you closer to Him.

Lots of love,

Lea.

 

 

 

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