While personally I have never been to South Africa, I have met and worked with many people from South Africa throughout the 10 years I have been giving New Zealand immigration advice. For example, our Practice Manager is from South Africa and we are good friends.
Every time I speak to someone from South Africa, the story is the same. People want to leave South Africa for countries like New Zealand because of South Africa’s many problems – crime, unemployment, racial division, just to name a few.
South Africa was removed from the list of countries for visa-free travel to New Zealand in November 2016. Visa-free travel means no Visa is required to board a plane to New Zealand, you can apply for a Visa at a counter on arrival.
In response, South Africa removed New Zealand from its list of countries for visa-free entry there in January 2017, although the visa-free status for New Zealand was returned by the South African Government in July 2019.
Removal of South Africa from the list of countries for visa-free travel to New Zealand made it much harder for citizens of South Africa to even enter New Zealand as a Visitor. Citizens of South Africa must now apply for a Visitor Visa from outside New Zealand.
If you are considering migrating to New Zealand from South Africa, the challenges seem to become more significant as time passes.
The standard pathways remain, for example applying for a Work Visa based on a job offer, or a Residence Visa based on job offer in an occupation which appears on the Green List. We have assisted clients with these types of applications before – see for example our blog here.
But what do you do for example, if you are retired or too old to work?
In this blog, I want to describe some of the recent successes we have had at Laurent Law for citizens of South Africa, and what this may mean for how we can help you, if you are from South Africa and want to find a new life in New Zealand.
We recently had a significant success for a older female citizen of South Africa who was in New Zealand without a valid Visa, i.e. an overstayer. She became an overstayer after her Visitor Visa expired and her family simply could not face a situation where she would have to return to South Africa.
We appealed to the Immigration and Protection Tribunal on humanitarian grounds and the outcome was that the Tribunal directed the grant of a Residence Visa.
We cannot disclose too many details about our client, but in summary, it includes some of the usual types of stories we hear from South Africans – husband shot dead by intruders at the family home, house destroyed by a flood, along with family in New Zealand who worry about their future safety.
In another humanitarian appeal we assisted with, a retired couple with strong family connections to New Zealand were successful, with the wife being granted Residence. The husband was subsequently granted Residence in a partnership application based on his wife, despite a health condition which may require some treatment.
Just because these humanitarian appeals resulted in the grant of a Residence Visa doesn’t mean that this will happen for every humanitarian appeal involving citizens of South Africa – every appeal depends on the specific facts presented. However it seems to the writer that recent decisions provides an opportunity to ‘test’ the Tribunal with further situations involving citizens of South Africa in the future. The writer also notes that a search of the Tribunal’s database of decisions shows 6 humanitarian appeals decided for citizens of South Africa during 2023, 5 of which were successful and 4 which resulted in the grant of a Residence Visa.
If you are from South Africa and think you might have the right type of circumstances for a humanitarian appeal to be successful, then please contact us to discuss. We cannot guarantee that we will be able to achieve success for you, but if the circumstances are right it may be worth giving a humanitarian appeal a try. Please note that you must already be in New Zealand to file a humanitarian appeal.
Sometimes, citizens of South Africa (already in New Zealand) are so desperate to remain in New Zealand that they ask us if a Refugee claim can be filed.
Our advice is if you are from South Africa, a Refugee claim is not going to work, as there is still a semi-functional Government there which can enforce laws – there is no failure of state protection. A very common fear of being a victim of criminal violence is not a ground for asylum under the Refugee Convention. While protection might be available against the risk of being killed or of cruel treatment, a claimant must show that something sets them apart as being at a higher risk of harm than the general population. Our search of the Tribunal’s decisions in appeals of declined Refugee claims, shows 9 decisions involving citizens of South Africa in the last 5 years, all of which were declined.
A Refugee claim is also a one-way street too, because if it fails, you are very unlikely to gain a Visa for any country like New Zealand in the future (eg. Australia, UK, USA, Canada).
Should I approach my local Member of Parliament?
A Member of Parliament can be approached for assistance in any situation (not just if you are from South Africa). The MP may agree to approach the Minister of Immigration.
However, what we would say is that a Member of Parliament is not an expert in Immigration Law. A Member of Parliament is not well suited to presenting a detailed set of circumstances to a decision-maker or the Immigration and Protection Tribunal. An MP could be viewed as an option of last-resort, but in practice we find the best they can do is write a (often brief) support letter. A Member of Parliament also likely has political motivations to pick and choose when they will help. It may also be ethically questionable for an MP to approach the Minister of Immigration, especially where the Minister is from the same political party.
The Immigration and Protection Tribunal is required to write a detailed decision with reasons, whereas the Minister of Immigration has absolute discretion so does not have to give any reasons for their decision. A Member of Parliament could simply decline to help.
Therefore we say, if your situation is complicated, talk to us first. In some instances which we cannot disclose, Members of Parliament have come to us for help with immigration problems for their constituents. The Lawyers at Laurent Law are in a strong position to handle a complicated immigration case.