Appealing a VFS visa rejection in South Africa
In 2014, the Department of Home Affairs (“DHA”) implemented a new system for the submission and adjudication of visa and permit applications. This system involved the opening of 11 Visa & Permit Facilitation Centres (“VFS”) across South Africa in order to facilitate the visa and permit submission process and alleviate some of the strain taken by DHA. The officials at VFS accept the applications, capture the applicant’s biometric data and thereafter, deliver the applications to DHA Head Office in Pretoria for adjudication. Once the applications are finalised, they are sent back to VFS who are tasked with notifying the applicant that an outcome has been reached. It is important to note that VFS are not mandated to advise an applicant whether all requirements have been met in respect of his or her application and in many instances the officials will accept a defective application, only for it to be rejected in a matter of weeks.
A prime example of this is the absence of the requisite police clearance certificate, which effectively results in a guaranteed rejection, much to the frustration of the aggrieved applicant. In an ideal world, the officials would be in a position to request that you only submit a complete application which complies with all requirements, but this is unfortunately not the case. It goes without saying that not all applications are rejected due to non-compliance with requirements, and we have seen a large volume of rejections incorrectly adjudicated on by DHA. In both instances, the Applicant is permitted to appeal the decision within 10 (ten) days. The subsequent appeal must again be submitted to DHA via a VFS office.
Insofar as rejected applications are concerned, we see three prevalent causes, namely:
- The application lacked all the requisite documentation
- The application was made under the incorrect category
- The application was simply adjudicated on incorrectly by DHA
All of the above situations are appealable and we will deal with each in turn. The first instance was touched on above and envisions a situation where an applicant failed to submit one or more of the requisite documents. A common example would be the failure to submit the relevant police clearance certificates or proof of cohabitation where required. Such an oversight will result in an instant rejection more often than not and it falls to the applicant to remedy this within the prescribed 10 (ten) day period. In theory, this is a valid basis for rejection and the applicant should submit a fresh compliant application. DHA, however, are accepting submission of the missing documents in the form of attachments to an appeal. The second instance applies where an applicant intends to apply for a visa or permit, but erroneously submits an application for another category of visa. A common example of this would be where an applicant intends to apply for a visitor’s visa with work endorsement as a spouse of a South African citizen, but instead makes application for a relative’s visa. The requirements differ in each respect and this often results in a rejection due to non-compliance. This is a more complex rejection to overturn, but it can nonetheless be appealed. The final instance is the most straightforward and occurs where a DHA official either misinterpreted the Immigration Act and the requirements set out therein or simply failed to apply his or her mind to the application in question. An appeal in this regard will require argument to me made around the interpretation and implementation of the law in support of the request to overturn the rejection.
The unfortunate reality is that DHA is inundated with applications and appeals, and the appeals department in particular can take an inordinate amount of time to provide outcomes. VFS officials advise that an outcome can be expected within 6 -10 weeks of submission, but in practice this is rarely the case. It is, however, possible to expedite the process by submitting a letter of demand to DHA in terms of which an applicant requests that an outcome be delivered within a reasonable time period. It is advisable to go down this route where the delayed adjudication is having a severely detrimental effect on an applicant’s life.
We deal with the DHA and the appeal process on a daily basis and are well placed to assist in the drafting of appeals and letters of demand where required. Should you require further information, please do not hesitate to contact our offices, or use the form below to have our attorneys review your appeal request.