Ryanair restricts South African travellers – A Legal Perspective

A legal perspective on Ryanair restricting South African travellers

2022-06-08

Irish airline Ryanair has recently asked South Africans to prove their nationality by passing an Afrikaans language test on UK flights. South Africans have condemned the airline for making them take the test, calling it discriminatory.

Ryanair defended the test, saying it weeds out those travelling on fraudulent South African passports and helps to reduce fraud.The airline has said those who do not pass the test will be refused travel and will receive a full refund for their tickets.

Some reports say it applies to all Ryanair's European flights, while others state it applies to those South African passport holders who are travelling on UK and Ireland routes. In a statement to South Africa's Daily Maverick paper, Irish border authorities denied they require such tests.

What are some of the legal perspectives that should be considered?

Official languages

South Africa is a multilingual country, and Section 6 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) grants official language status to 11 languages, namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa, and isiZulu.

In addition, President Cyril Ramaphosa’s cabinet approved the Constitutional Eighteenth Amendment Bill for public comment a few days ago, which will recognise South African Sign Language as the twelfth official language of the country.

Afrikaans is not the only official language in a diverse country such as South Africa. Many South Africans do not speak or understand Afrikaans. According to 2018 statistics, only around 12% of South Africans speak Afrikaans at home.

Thus, any such a test is fundamentally misguided, and there is an apparent disconnect between the purported outcome and the means to achieving same.

Discrimination

In South Africa, discrimination is prohibited by the Constitution in terms of section 9 of the Bill of Rights and by the Prevention of Unfair Discrimination Act 4 of 2000, as amended (the “Act”).

In terms of the Act: “discrimination means the behaviour or practice of forming of opinions about others not based on their individual merits, but rather their membership in a group with assumed characteristics."

Most importantly, the discrimination includes:

• the actions; or
• the inaction of such entities or associations:-
• and consists of those of its-

The Act prohibits unfair discrimination in South Africa by the government and by private organisations and individuals. If these tests to '' identify fake passports'' were being conducted on South African soil, the airline would be in hot water.  

Data Privacy

In South Africa, the right to privacy and dignity is protected in terms of the common law and section 14 of the Constitution. In addition, data privacy is regulated by the Protection of Personal Information Act 4 of 2013 (“POPIA”), personal information is defined as including:

"…means information relating to an identifiable, living, natural person, and where it is applicable and identifiable, existing juristic person, including, but not limited to— information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language, and birth of the person…”

POPIA regulates the processing of private information:

“any operation or activity or any set of operations, whether or not by automatic means, concerning personal information, including—

(c) Merging, linking, as well as blocking, degradation, erasure, or destruction of Information.”

Therefore, the question is whether Ryanair had informed consent of the passengers it tested, regardless of the logical disconnect and on who’s soil it occurred. POPIA is the little sister of the GDPR, which applies on European soil and sets a similar and, in many instances, a higher standard than POPIA does.

The fairness of the decision and administrative process

As a concluding remark, in South Africa, the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) gives effect to the right to administrative action that is lawful, reasonable, and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution.

An administrative act means any decision is taken or failure to take a decision. It extends to both the state and private organisations. It is a mechanism that holds decision-makers to account and allows for a process to establish whether the decision taken aligns with the purported outcome seeking to be achieved and whether it is substantially and procedurally fair.

The airline would struggle to justify a decision that is flawed even on an elementary statistical analysis. A better mechanism to verify identity would potentially be to look at ways to verify between official sources or through the relevant border control process and not through flawed, arbitrary self-assessment.

Is the Afrikaans test a UK visa requirement?

It is also important to note that completing this test is not a UK government requirement. The UK authorities do not request that South Africans write a language test for identity verification. South African travellers who are entering the UK will need to provide proof of a legitimate passport and a valid visa.

There are many visa types that apply to the United Kingdom, including Business Visas and Work Permits. Completing an Afrikaans language test is currently not a requirement to obtain any visa in the United Kingdom.

Travellers should ensure they have a valid visa if they are planning to travel to the United Kingdom on a South African passport. If travellers are visiting the UK to attend or take part in an event related to work, the visa type will depend on a number of factors.  The two types of business visas that apply to the United Kingdom include:

• Permitted Paid Engagement Visa: this entails being paid by a UK company to come as an expert in your profession
• Standard Visitor Visa: this entails coming on a business trip and not being paid by a UK company

For permanent residents and South Africans who are employed in the United Kingdom on a permanent basis, several work permits may apply. Please contact Centuro Global should you require more information on visa types and official documentation required.

UPDATE: Ryanair has now revoked this policy

Contributors to this article include:

Nicolene Schoeman-Louw

SchoemanLaw Inc

www.schoemanlaw.co.za

Cape Town, South Africa