Press Release: ConCourt gives relief to asylum seekers applying for visas
Published by The Legal Resources Centre 11 October 2018
For Immediate Release: 11 October 2018
On 9 October 2018, the Constitutional Court handed down a judgment that focused on the constitutionality of Immigration Directive 21 of 2015. This directive prohibited asylum seekers from applying for temporary and permanent residence in South Africa. The Court ruled that the Directive barring asylum seekers from doing so was invalid and unconstitutional.
The LRC represented People Against Suffering, Oppression and Poverty (PASSOP) as a friend of the court.
This case originates from an order of the Western Cape High Court issued in 2003 in Dabone v Minister of Home Affairs which ordered the Department of Home Affairs not to require asylum seekers to cancel their asylum seeker permits in order to apply for a permanent or temporary residence permit under the Immigration Act. Further, that the Department must not require that asylum seekers must possess a valid passport in order to make such an application.
This decision was then made into a Circular to assist officials in the Department. Among other things, this Circular confirmed that asylum seekers in possession of an asylum seeker permit can apply for temporary and permanent residence permits as contemplated in the Immigration Act. The circular also confirmed that such applicants did not need to give up their status as asylum seekers when applying for either permanent or temporary residence permits.
The Department complied with the Dabone order until 2016 when Directive 21 of 2015 was issued. This Directive withdrew the Dabone circular and provided that any asylum seeker who has not been recognised as a refugee cannot apply for change of status either through a temporary or permanent residence permit. The Directive further noted that the only change of status available for asylum seekers had to be after they are recognised as a refugees and submitted an application through section 27(c) of the Refugee Act, where a recognised refugee applies to be a refugee indefinitely and if approved, such person can then apply for permanent residence in terms of section 27(d) of the Immigration Act.
With this Directive in place, the Department of Home Affairs rejected Mr Tashriq Ahmed clients’ application for temporary and permanent residence. All of his clients were holders of asylum seeker permits. The Department of Home Affairs relied on Immigration Directive 21 of 2015 in its reasoning. Mr Ahmed and his clients approached the High Court, Western Cape Division where the court found that there was no reason why an asylum seeker should be barred from applying for temporary or permanent residence if they met the requirements. The court ruled that the Directive was arbitrary and should be set aside.
This judgment was appealed at the Supreme Court of Appeal, which found that asylum seekers are subject to the Refugees Act, which is a separate regime to that of the Immigration Act and the interpretation of the Immigration Act was incorrect. As such, it upheld the appeal and the High Court order was set aside; however, it did not make a finding on the Directive.
On approaching the Constitutional Court, the LRC on behalf of the PASSOP, argued that under section 10 of the Immigration Act, all foreigners are permitted to apply for temporary residence visas for South Africa. The term “foreigner” is broadly defined as “an individual who is not a citizen”. Asylum seekers fall under this definition of foreigners. On its plain meaning, the Directive bars asylum seekers from applying for a temporary and permanent residence permits. Directive 21 is, therefore, patently unlawful as it denies asylum seekers their statutory right under section 10 of the Immigration Act; which infringes upon their constitutional rights and, accordingly, this Directive must be set aside.
The Constitutional Court held that the directive was unconstitutional and must be set aside. The general regime as set out in the Dabone Circular, The immigration Act and Regulations remains in force. The court stated that, “Asylum seekers must be allowed to apply for visas or permits under the Immigration Act, and if they meet the requirements of that Act, they must be granted the visa or permit.” However, because the Dabone order and Circular did not include the issue of applying for a change of within the borders of South Africa, as required by Regulation 9(2) of the Regulations, this remained in place. However, all affected applicants can apply to be exempted from the requirements of Regulation in terms of section31 (2)(c) of the Immigration Act and ask to apply for a visa from within the borders of South Africa.