If you are an asylum seeker and your application to be a refugee is refused, you are still allowed to apply for a visa. The Constitutional Court ruled this in a unanimous judgment handed down in October.
Background
The case was brought by three asylum seekers whose applications for refugee status had been refused. They each then made applications for visas in terms of the Immigration Act.
Arifa Fahme applied for a visitor’s visa so that she could remain in South Africa with her husband and children. VFS Global, a company contracted by Home Affairs to process immigration applications, rejected her application because she was an asylum seeker. The company said that it cannot issue temporary residence visas to asylum seekers.
Kuzikesa Swinda and Jabbar Ahmed each applied for a critical skills visa. Their applications were rejected because their asylum applications were before the Refugee Appeal Board.
The main reason for all of the rejections however was a directive issued by Home Affairs in February 2016. This directive said that asylum seekers are only entitled to visas under the Immigration Act when they have been certified as refugees by the Standing Committee for Refugee Affairs. This effectively barred asylum seekers from applying for any type of visa.
Constitutional Court proceedings
The Constitutional Court considered two main issues. First, whether an asylum seeker can apply for a permit or visa in terms of the Immigration Act. Second, whether the Directive should be set aside. PASSOP (People Against Suffering, Oppression and Poverty) joined the case as a friend of the Court.
Can an asylum seeker apply for a permit or visa in terms of the Immigration Act?
An asylum seeker is a person who has arrived in South Africa who asks to become a refugee. A person is eligible to be a refugee if they are fleeing another country due to persecution for their political beliefs or their membership of a particular social group. When a person enters South Africa as an asylum seeker they may be issued an asylum transit visa. This visa is valid for five days. During this period an asylum seeker must report to a Refugee Reception Office to apply for refugee status. If the application for refugee status is successful, the person is entitled to live and work in South Africa and may apply for permanent residence.
The Immigration Act allows any foreigner to stay in South Africa by applying for two categories of applications: temporary residence permits or permanent resident permits. The Act includes several different temporary residence visas such as spousal visas and critical skills visas.
An application for a temporary residence

visa must be made at a South African embassy in the country in which that person lives.
The court found therefore that Ahmed and Swinda could not have applied for their permits in South Africa. Those applications had to be made from outside the country. The court found therefore that the SCA’s ruling in this regard was correct.
But the court then considered whether the directive should be set aside. It found that the directive imposed a blanket ban on asylum seekers from applying for a temporary residence permit or a permanent residence permit. The directive only enabled asylum seekers to apply for a permanent residence permit if they had been certified indefinitely as a refugee by the Standing Committee for Refugee Affairs.
The court then considered whether this particular interpretation of the Refugees Act and Immigration Act was justifiable.
It pointed out that unlike applications for temporary residence permits, applications for permanent residence permits do not have to be made from outside the country. Also, the court said, the Immigration Act entitled “any foreigner” to apply for a permanent residence permit and there was no reason to exclude asylum seekers from this definition.
The court noted that to request Fahme to leave the country and leave her family behind would be unfair and unjust.
For all these reasons the court found that to the extent that the directive imposed a blanket ban on an asylum seeker from applying for a permanent residence permit it was unlawful and must be set aside.
What about the applications of Swinda and Ahmed? The court said that unfortunately they were not in the same position as Fahme. Critical skills visas are a category of temporary residence permits visas and such applications can only be made from outside the country. However, the court pointed out that the Immigration Act entitles a person applying for a temporary residence permit to apply for an exemption from the requirements of the Act. This meant that Swinda and Ahmed were entitled to apply for an exemption in order to apply for their visas locally. The court pointed out that there was good reason to allow asylum seekers to apply for an exemption because they often do not have proper documentation and cannot return to their country of origin. The court found that to the extent that the directive imposes a blanket ban on asylum seekers from applying for a temporary residence permit it was unlawful and must be set aside. V.3137

There are fears that more people will be separated by the introduction of a minimum salary level for those wanting UK family visas. Families living in the UK and abroad have raised concerns about what new rules will mean for them as they try to reunite with foreign spouses. In December, the Home Office, which says migration to the UK is too high, announced a package of measures to reduce net migration, following a spike in arrival numbers. V.5318
Click here for full article

An Ethiopian asylum seeker, who does not speak English, claims he was duped by a senior immigration official into paying an admission of guilt fine when he thought he was paying for bail.Two Western Cape High Court judges have condemned the official`s `deplorable` behaviour, set aside the fine, and ordered the immigration official be taken off the case. Tsegaye Esyas claims Annelise van Dyk treated him like an animal which led to him attempt suicide while in police cells. V.5320
Click here for full article

EREMY MAGGS: I want to stay with crime now. Individuals with a criminal record may be faced with significant challenges when seeking employment, I think that’s a given. Here in South Africa, employers may legally exclude an applicant from consideration for a position if having a clean criminal record is what is termed an inherent requirement of the job. That phrase, inherent requirement, is important, but what exactly does that mean, and when can an applicant be lawfully excluded for having a criminal record? V.5321
Click here for full article

As a South African who has adopted a nomadic work lifestyle alongside my wife, Ingrid Lotze, I’ve been an interested observer of South Africa’s snail-pace digital nomad visa (DNV) development process. Despite the optimism surrounding its introduction, the visa seems to miss several crucial marks for digital nomads like us. V.5322
Click here for full article

DA MP says hours lost continue to result in persons being unable to collect their ID documents due to unmanageable queues The DA has been inundated with complaints that the Department of Home Affairs (DHA) systems are offline, resulting in long queues and delayed processing of documents. Through questions posed to the Minister, the DA can now reveal that the DHA has lost over 77 years’ worth of working hours due to system downtime and load-shedding from 2019 to date. Concerningly, this data only relates to hours lost for the application of smart IDs, meaning decades more of working hours could have been additionally lost in other spheres such as passport or visa applications. V.5314
Click here for full article

Home Affairs’ seemingly endless court battles set the department back more than R110-million between April 2023 and the end of February this year. This was revealed in a written parliamentary response by minister Aaron Motsoaledi. He said the department accumulated a litigation bill of R117 692 996.3, higher than the R72 637 944.51 spent the year before. V.5315
Click here for full article

Airports Company South Africa (ACSA) this week revealed that Cape Town International Airport (CTIA) has achieved a ground-breaking milestone by processing more than 10 million passengers over a single financial year. This is the highest number of regional and international passengers processed since COVID-19 V.5316
Click here for full article

In recent years, South Africa has seen a significant influx of immigrants from various African countries, as well as other parts of the world. This has raised important questions about the country`s immigration policies and their impact on job creation for both locals and immigrants. The South African immigration system, like many other countries, is a complex and ever-evolving process that aims to balance the country`s economic needs with its social and cultural interests. Let`s take a closer look at how this system intersects with job creation in South Africa. The South African government implemented the Immigration Act of 2002, which outlines the country`s immigration policies and procedures. Under this act, foreigners are required to obtain a visa or permit to enter, work, or study in South Africa. The type of visa or permit required depends on the intended purpose of the individual`s visit and their country of origin. V.5312
Click here for full article

Due to system downtime and load-shedding, the Department of Home Affairs (DHA) lost nearly 141,000 hours of Smart ID application and production time between the 2019/20 and 2022/23 financial years. Minister Aaron Motsoaledi revealed this figure in a recent response to questions raised in Parliament by Democratic Alliance MP Adrian Roos. Motsoaledi provided a breakdown of smart ID production and application hours lost to technical difficulties and load-shedding per province for each financial year from 2019/2020. These disruptions hit home Affairs offices in the Eastern Cape the hardest, with over 34,000 hours to rotational power cuts and system downtime. Mpumalanga offices lost the next-highest number of hours at 17 V.5313
Click here for full article

Home Affairs Minister Dr Aaron Motsoaledi has said the public has shown great support for the final White Paper on citizenship, immigration and refugee protection which appeared in the Government Gazette on Wednesday. Briefing the media, he addressed what he saw as a long-overdue need to replace an outdated Citizenship Act, as well as enact proposed changes to existing legislation. V.5306
Click here for full article