VISA AND PERMIT ESCALATION SERVICES

Escalation and Litigation: A Strategic Pathway to Resolution

Due to ongoing backlogs at the Department of Home Affairs, litigation has become essential for applicants facing visa processing delays. Xpatweb’s legal team has developed a successful 3-pronged approach for escalating and litigating long-pending applications. This strategy has proven highly effective and we at Xpatweb provide tailored solutions to address any long-pending application. Delays can be frustrating and cause significant disruptions to personal and business affairs. In such circumstances, visa escalation and litigation provide a structured, formal pathway to achieve timely resolution. This process is designed to not only speed up decision-making but also ensure that applicants are afforded their legal rights, particularly when administrative inaction or excessive delay from government departments, being the Department of Home Affairs (DHA), impedes the progress of applications.

The escalation and litigation process unfolds in three distinct steps: diagnostic assessment, escalatory communication, and court intervention. Let us explore each of these stages in detail:

Step 1: Diagnostic Assessment

The foundation of any successful visa escalation or litigation process is a comprehensive diagnostic assessment. This step allows for an in-depth evaluation of the merits of the application in question.

We begin by requesting all the documentation submitted along with the application, in order to determine whether the application adhered to all the relevant provisions of the Immigration Act and the accompanying Regulations. By conducting a meticulous review of these documents, our team can identify any potential issues, which may lead to a rejection of the application.

Once the Diagnostic Assessment has been completed, we will provide a report on the merits of the application in question. Essentially, the Diagnostic Report provides an analysis on the feasibility of proceeding with the escalation of the particular application. This rapid assessment ensures that the necessary groundwork is laid for subsequent escalation.

This phase is not only crucial for determining the chances of success but also for establishing the optimal strategy going forward and sets the stage for productive engagement with the Department of Home Affairs.

Step 2: Escalatory Letters

If the diagnostic assessment suggests that the application has a viable prospect of success, and the applicant is ready to proceed, the next phase involves formal communication with the Department of Home Affairs through a series of escalatory letters.

This phase is critical in demonstrating that the applicant has exhausted all possible administrative avenues and has acted in good faith by allowing the DHA sufficient time to process the application and received adequate notice that should no response be forthcoming, or an estimated date of adjudication provided, we will endeavour to obtain the assistance of the courts to obtain the outcome on the relevant application. The drafting and serving of three formal letters to the DHA form the core of this step. These letters are carefully worded and structured to convey urgency and an intention of approaching the High Court, should the need arise.

The purpose of these escalatory letters is to advise the DHA that if a decision is not forthcoming within 25 business days, the matter will be escalated to the High Court for judicial intervention. This 25-day window allows the DHA the opportunity to respond to the request and potentially resolve the issue without necessitating court involvement. The aforementioned period is determined in line with the DHA’s Service Delivery Charter, which provides that should a member of the public lodge a complaint with the DHA, they can expect to receive a response from the DHA within 25 business days.

Our escalation requests are largely scripted in line with the provisions of the DHA’s Service Delivery Charter, which explicitly provides for estimated timelines for adjudication of specific applications. A Service Delivery Charter is a statement of commitment that a department or component makes towards service delivery. It should be developed to suit the needs of individual departments or components. It is worth noting that in many instances, this step has proven highly effective. Engaging with the DHA at a formal, legal level often compels the department to prioritise the application and provide an outcome. Our experience shows that through strategic, well-timed communication, we can often secure outcomes for clients without further litigation, saving both time and resources.

However, should the DHA fail to respond or provide a satisfactory resolution within the specified timeframe, the process proceeds to court intervention, as outlined in Step 3.

Step 3: High Court Application for Relief

When all other efforts to expedite the visa process have been exhausted, and the DHA remains unresponsive, the final step is to approach the High Court of South Africa for the appropriate relief. This is where formal litigation becomes necessary.

The legal process begins with the drafting of a court application, which sets out the circumstances pertaining to the application and specifically requests the court to provide an appropriate order, given the prevalent circumstances. The appropriate remedy depends on the individual matter, and it is at this point that the importance of the Diagnostic Assessment comes to the fore.

Legal action can often feel daunting, with many individuals fearing potential repercussions from the Department of Home Affairs if they choose to escalate their visa applications. However, due to the significant backlog in processing, legal escalation and litigation remain the most effective means of ensuring timely adjudication. The proven success of these methods has made them essential for applicants facing delays. In the event of unfavourable decisions, appeal applications that involve court intervention may provide a viable recourse, particularly when timely outcomes are not achieved.

Types of Legal Actions

Class Actions: Class actions can be an attractive option for applicants seeking a more affordable route when challenging the Department of Home Affairs. These actions tend to be cost-effective, involving multiple applicants in a collective suit. However, despite the benefits, applicants in class actions may face delays even after receiving a court order. Volume processing often results in extended waiting periods for outcomes and an increased likelihood of negative adjudication.

Individual Court Applications: Individual court applications offer a more personalised approach, providing tailored legal strategies for each applicant. This allows the Department of Home Affairs to focus on a single application, ensuring faster and more reliable outcomes. Xpatweb has a proven track record with individual suits, boasting a 100% success rate in securing favourable results for clients with pending applications.

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* Trusted Employers who have received this status form the DHA often meet the following criteria: - Have invested more than R100 million into the South African Economy - Employ more than 150 staff

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