31 Oct When to Consider Litigation for Your Visa Application
Applying for a visa in South Africa can sometimes lead to frustration, especially if your application is delayed, refused, or you believe a mistake has been made. Litigation is a powerful but complex tool for resolving visa application issues. It is not the first step for most applicants, but in certain cases, it can be highly effective.
Understanding the South African Legal Framework
The Department of Home Affairs (DHA) is responsible for visa adjudication. Its decisions must comply with the South African law, the Constitution, and the Promotion of Administrative Justice Act (PAJA). The Act gives you the right to just administrative action, including the right to reasons for adverse decisions and to challenge unfair administrative decisions in court. The South African Constitution protects your rights to fair administrative action and access to courts.
Common Grounds for Litigation
There are various reasons why you might consider litigation. If your visa application is delayed beyond the usual processing time and repeated follow-ups have not led to a decision, you might consider litigation. Other experiences that might lead to litigation include unfair or unlawful refusal, the failure to provide written reasons for a negative decision, or if the DHA did not follow proper procedures, such as failing to consider all relevant documents, not affording you an opportunity to respond, or not following published guidelines.
When Litigation is Most Effective
If you experience a significant, unexplained delay, you can apply to the High Court for mandamus, which is a court order compelling the DHA to make a decision. If you believe that the refusal of your application was procedurally unfair, irrational, or not based on the facts, you can bring a review application under PAJA to set aside the decision. You can appeal for reasons if you have not been given any reasons for the refusal by applying to the court to compel the DHA to provide these. In exceptional cases, such as where your right to remain in the country is imminently at risk, you can bring an urgent application for interim relief. Knowing how litigation can help pending temporary and permanent residency applications is key to success.
Exhausting Internal Remedies
It is of great importance to ensure that you have exhausted all other internal remedies before taking the next step toward litigation. Generally, you must:
- Request written reasons from the DHA for the refusal (they must provide these within 90 days under PAJA).
- Lodge an internal appeal or review mechanisms provided by the DHA.
Do note that courts may not entertain your case if you have not exhausted all the available internal remedies, unless these remedies are ineffective or would cause undue delay.
Litigation should be your last resort, used only when all reasonable efforts to resolve the matter with the DHA have failed, as mandamus orders are effective for compelling the DHA to make overdue decisions, and review proceedings can overturn unlawful or irrational visa refusals.
CONTACT US and let our dedicated team of attorneys at June Luna Immigration Attorneys assist before you decide on litigating, as this could do more harm than good. You can also learn how to expedite a South African visa application to get the results you want.