The truth about representation under the new immigration act

representation under the new immigration act
representation under the new immigration act

Much debate had taken place on the internet and printed press regarding the new immigration regulations – some guess work, some informed and some simply wrong.

One of the areas up for debate is the repealing of section 46 of the immigration act.

What is Section 46?

Section 46 deals with the right of the applicant (prospective immigrant) to have representation and what type of representation they may have.

In laymans terms who can represent you with regards to your immigration application.

So what does section 46 say?

(1) No one, other than an attorney, advocate or immigration practitioner, may conduct the trade of representing another person in the proceedings or procedures flowing from this Act.
(2) In order to be registered on a roll of immigration practitioners to be maintained by the Director-General, an immigration practitioner shall apply in the prescribed manner, producing evidence of the prescribed qualifications and paying any prescribed registration fee.
(3) After affording him or her a fair opportunity to be heard, the Director-General may withdraw the registration of an immigration practitioner who has contravened this Act or any prescribed duty.

So what do the new regulations now say?

Actually nothing the whole section has been repealed.

What does that mean?

  • It means that the Immigration Act now longer stipulates who may represent a client
  • It means the Department of Home Affairs will no longer maintain a roll of immigration practitioners
  • It means the industry becomes deregulated

Why are they doing this?

The rationale behind the deregulation of the industry is something we do not understand and do not agree with. Our viewpoint has been and remains that the immigration industry needs tighter regulations to ensure that clients have proper protection. It is also somewhat surreal that in an era where South Africa champions consumer rights (think of our excellent consumer protection act) this route would be taken.

The representatives of immigrants hold the Department of Home Affairs accountable, there is more than one example of immigration companies have successfully taken the Minister of Home Affairs to court on behalf of clients. In our court case in 2010 on behalf of +/- 1000 prospective immigrants who were waiting and waiting and waiting for the DHA to reach a decision on their permit application. We were of course successful as the DHA had not performed to its published time frames.

Of course some representatives, be it immigration practitioners or lawyers, have not shown the same commitment to their clients, and some unfortunately as with any industry provide a poor service and take clients money under false pretences.

What now?

As we have done since 2005 on behalf of in excess of 6, 500 clients we will continue to act on our clients behalf, as will the industry in general.

Sadly not only will the ‘bad eggs’ remain there is every chance they will increase.

Deregulation just means a missed opportunity to install a set of values and standards to which all parties in the immigration industry must adhere and making it all the more harder for the client to seek recourse.

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