The Black Pen Immigration team give their opinion on the Yassin Bey Immigration violation, from a legal standpoint by answering some fact-based questions around the case.
FACT: CAPE TOWN - The family of Yasiin Bey, formerly known by his other rapper name Mos Def, has been granted a temporary reprieve.
Q: What does this mean and why does it usually happen?
A: A reprieve is a temporary postponement of a punishment, usually granted to give the accused the possibility to prepare an appeal. In the case of the family of Yasiin Bey, immediate execution of the punishment would have meant that they would be deported, which would make it very difficult for them to appeal the decision from another country.
Reprieves are very common in South Africa, just as in any democratic country that follows the Rule of Law, as they help ensure that nobody can be barred from access to justice.
FACT: They are fighting to remain in the country until the outcome of his criminal case.
Q: Is this something you can actually do? What's the procedure?
A: In order to be allowed to remain in the country until the outcome of Yasiin Bey’s trial, his family has applied for an interim order in Court – which is generally something that anybody facing litigation can do.
An interim order is an order issued by the Court to grant that the status quo will be maintained until the passing of the sentence. This reflects the idea that an act of the Court shall prejudice no one. Therefore, interim orders may be issued by the Court to ensure that the interests of the parties to the litigation are not harmed until a verdict has been passed.
FACT: The American rapper, real name Dante Terrell Smith, is currently out on bail after allegedly violating immigration regulations.
Q: Which act? What are the details? Where did he go wrong here? What could he have done to avoid this?
A: There are three different allegations brought against Yasiin Bey.
Firstly, by attempting to leave the country on his “world passport”, Yasiin Bey could be charged with the criminal offence of using a forged document. In common law, uttering a forged document is defined as the unlawful and intentional passing off of a false document to the actual or potential prejudice of another. Whether the person to whom the document is uttered is actually misled by its falsity or not is irrelevant here.
However, it is rather unlikely that Yasiin Bey will ultimately be charged with this, as this particular criminal offence systematically constitutes a type of fraud. Yasiin Bey’s “world passport” may well be a fantasy passport, but in no way does it falsely pretend to be anything that it is not. This situation is significantly different to one where, for example, a passport looks like a genuine US passport, but was actually counterfeited in some forger’s workshop. For this lack of a fraudulent nature, it is not very likely that these criminal charges will go through.
Secondly, Yasiin Bey could be charged with a statutory offence found in Section 49 (15) (b) (iv) of the Immigration Act 13 of 2002. In accordance with this provision, anyone who, without sufficient cause, possesses a falsified passport, travel document, identity document or other document used for the facilitation of movement across borders, is liable on conviction to imprisonment for a period not exceeding 15 years without the option of a fine.
In the same way as with the above, one could also argue here that this “world passport” is not trying to simulate anything that it is not, and it is thus not really a falsified passport. However, if you look closely at the wording, you will see that the Immigration Act, unlike the criminal offence, does not actually require any intent to prejudice someone. One could therefore argue that according this provision, it is irrelevant that this document does not aim to mislead anyone. What may be more important here is the fact that passports are typically issued by a recognised national authority, whereas the “world passport” is issued by a private organisation. This could possibly be sufficient to render a “world passport” a false passport in terms of the Act.
Lastly, there are the charges for staying in the country without a valid visa since 2014. The Department of Home Affairs claims that Yasiin Bey entered South Africa in 2013 on his American passport, but never renewed or changed his status after his three-month visitors visa expired.
According to Section 43 (b) of the Immigration Act 13 of 2002, all foreigners have the obligation to depart upon expiry of their status. Failing to do so constitutes an offence according to Section 49 (1) (a) and is punishable by fine or even imprisonment for up to two years. Furthermore, Section 34 of the Immigration Act authorises the detention and deportation of illegal foreigners.
Unfortunately for Yasiin Bey, the law is quite clear here. Whether he used his American or his world passport is irrelevant when it comes to the fact that he would have needed a valid visa in order to stay in the country. Regardless of his passport, there is absolutely no good reason why he would just stay in the country for years without ever thinking about his visa situation. It may come as a surprise to Yasiin Bey, but South Africa is a real country with a real government, and unlike his world passport, its laws and regulations are just as real as their enforcement.
The best way for people to avoid ending up in such a situation is actually quite simple: Just inform yourselves with enough time ahead about the visa options that might be available to you. Speaking to a lawyer or an immigration specialist is often a good idea to make navigating through all the laws and requirements more manageable. In any case, foreigners should always check their options and apply for a renewal or change of their status well before its expiry, as a proof of application alone does no longer protect you from deportation.
FACT: The family of six was given two weeks to leave, but made an application in the Western Cape High Court to be allowed to stay.
Q: What does the SA law say about this situation? What are the exceptions if any?
Again, the law is unfortunately pretty clear about this. According to Section 30 (h) of the Immigration Act 13 of 2002, foreigners who have overstayed their visas may be declared undesirable and after such declaration do not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit. Remaining in the country without a valid visa for more than 30 days leads to a ban from the country for a full five years. If you remember that Yasiin Bey and his family have even been staying in the country illegally for a whole two years, it makes the situation very obvious: They will have to leave.
Theoretically, the Immigration Act gives the Minister of Home Affairs the authority to, upon application, waive any of the grounds of undesirability (Section 30 (2)), allow a foreigner and his family to sojourn in South Africa for a definite amount of time (Section 31 (2) (a)) or to modify or even reverse a decision made by an immigration officer (Section 8 (7)). But it is highly unlikely that Yasiin Bey and his family will actually benefit from any of these exemptions.
The determining factor for all of these exemptions would be the existence of a “good cause”. What exactly would constitute such a good cause is left open by the Act, but it is hard to imagine one in the case of Yasiin Bey and his family. As a successful artist, he and his family do not only have American passports, and therefore a secure and stable country of origin, but also sufficient financial means that would have given them good chances of success had they just applied for a visa. As was pointed out earlier, there simply seems to be no good reason at all for them to believe that they could just live in South Africa for many years without having to waste a single thought on their visa situation.
FACT: Smith was arrested at Cape Town International Airport last month. He had entered South Africa on a US passport, but produced an unrecognised 'world passport'.
Q: What is the "World passport"? Why was he arrested? Which law did he break?
The world passport is a machine-readable international travel and identity document issued by the World Service Authority (WSA), a private non-profit organisation based in Washington DC. Albeit similar in appearance to a national passport or other officially recognised travel documents, the world passport differs from national passports in that it identifies its holder as a human being rather than as a national subject.
The problem with this world passport is that according to international law, the right to issue passports lies exclusively with national states. Whilst world passports have verifiably been accepted by many states on a case-by-case basis in the past, they have also on just as many occasions been rejected. Garry Davis, the founder of the organisation that issues these world passports, has himself been detained more than 20 times for trying to use his world passport.
Since only passports that were issued by a recognised national authority are officially seen as valid travel documents, using any other form of identification document is never a safe bet. Yasiin Bey had to find this out the hard way, and is now facing charges for using a false passport.
FACT: When he tried to leave and was arrested. His family's case has been postponed to 17 February, while he is expected back in court on 8 March.
Q: Please give a conclusion on what can people do to avoid such situations?
A: As explained in detail earlier, Yasiin Bey and his family will most definitely have to leave South Africa and will not be allowed to return any time soon. Besides this, it is safe to assume that he will also walk away with a heavy fine on top of it.
What makes this story so remarkable is that the consequences for Yasiin Bey and his family are so drastic, but the fact that it would have been so easy to avoid this entire situation.
All that foreigners need to do is to check that their passports and travel documents have not expired, and inform themselves ahead of time about the visa options that might be available to them. For foreigners who are already living in the country, it is important that they remember when their status expires and apply for a renewal or change of status well before the expiry date. With all of these questions, hiring an immigration professional can help visa applicants to identify potential obstacles in advance and sort out their applications with peace of mind.
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