Victory for citizenship applicants as court condemns Home Affairs gatekeeping

Clerical officers at the Western Cape’s Home Affairs Department have been described as "gatekeepers” who have acted unlawfully, as they refused to accept citizenship applications at the offices in Cape Town. 

De Saude Sadat Darbandi Immigration Attorneys (DSD Law) represented seven applicants who alleged they had problems associated with the submission of application forms in which Department of Home Affairs officials (screeners) refused to accept their applications, which they perceived to be defective. 

According to the applicants who have attempted to apply for citizenship, screeners insist on documents that are not prescribed by law; they are unreasonable, superfluous, or simply impossible to provide. 

The applicants, in their arguments, submitted that the “gatekeeping” renders the “application process arbitrary, unpredictable and capricious, as one cannot foresee which officials will demand what document before an application will be accepted”.

The applicants also further argued that the officials' manner of conducting the screening process increased the risk of corruption, as department officials may exploit the prospect of gatekeeping to extract bribes from desperate applicants.

Among the applicants was a woman who was denied the opportunity to file her application to register her birth. She was informed that only individuals with a South African parent could apply.

Another applicant, who has dual citizenship in Namibia and South Africa, was turned away when he went to apply for an issuance of a certificate confirming his South African citizenship, but was told he was “an illegal foreigner”. 

Further to their submissions to the court, the applicants said they were never provided with any evidence that the officials in Cape Town are authorised to make final decisions on applications under the Statutes but that the decision-making authority is located in Pretoria.

The Home Affairs Department, in rebutting the applicants' version, said that screeners have other functions that include attending to queues and interviewing the potential applicants in terms of Batho Pele policy principles.

“These functions are referred to as ‘walkabouts’ by the (department). According to the department, these walkabouts entail asking individual applicants as to what assistance they require, to ascertain if they are queuing in the correct line, and prior to handing in the forms to check if the applicant is in possession of the required documents. 

“It is contended on respondents’ behalf that if proper screening of applications prior to posting is not done, the officials at the hub in Pretoria will be overwhelmed with incomplete forms. It is also asserted on respondents’ behalf that the department processes vast volumes of matters which involve members of the public. If the public is allowed to abuse the system by insisting that their non-compliant applications be taken in, that would result in undesirable outcomes for both the applicants and the department,” the judgment noted.

Department spokesperson, Siyabulela Qoza said: "The Department is studying the judgment."

DSD Law attorney, Stefanie de Saude Darbandi, said they are pleased with the court’s decision. 

“It represents an important step toward ensuring that applicants aiming to comply with our relevant birth, identification, immigration, and citizenship laws are treated fairly and justly. The judgment addresses the unlawful practice of Department of Home Affairs officials refusing to accept applications without proper justification, thereby denying applicants the opportunity for due process. 

“The practice of turning away applicants without accepting their applications not only infringes upon their rights but also prevents them from accessing administrative justice. Such actions bypass the proper adjudication process and deny individuals the opportunity to receive written reasons for rejections, leaving them without recourse to challenge these decisions,” said De Saude Darbandi. 

High court judge Constance Nziweni said the screeners acted beyond their powers (ultra vires) and proposed a list of guidelines to the department to ensure procedural fairness.

Nziweni ordered that the applications of the applicants be accepted at the Cape Town offices and to take the necessary steps to transfer such applications to the appointed adjudicators within the department. 

“The moment a public official acts ultra vires, that process becomes tainted as it is not transparent and affects procedural fairness that result in exclusionary practices. 

“According to the applicants’ argument, the officials at the department offices who refuse to accept applications serve as extra-legal ‘gatekeepers’.”

Among the guidelines Judge Nziweni proposed to the department were that:   

• If, after the screening process, an applicant does not meet the criteria specifically in the Statutes or Regulations, and the screener is not to place the application on the list of applications that are to be dispatched to the Pretoria hub; the applicant should be advised of the deficiency or deficiencies in the application. 
• In the event that an applicant disagrees with the screening results and insists that the application should be forwarded to the Pretoria hub, notwithstanding the deficiency or deficiencies, such an application should be dispatched to the Pretoria hub to a specific point that handles applications that are primarily viewed as being non-compliant.
• This point may be regarded as a verification point and should be mandatory once the applicant, after an unsuccessful screening process, persists that an application should be dispatched to the hub in Pretoria.
• If the verification point does agree and concludes that the application is deficient, it can require further information and dismiss the application if the required information is not provided within a specified time.

chevon.booysen@inl.co.za