Home Affairs to be taken to court

Source: Groundup, 26/05/2016

Home Affairs to be taken to court

Concern over withdrawal of rights of asylum seekers and refugees
Immigration lawyers have accused the Department of Home Affairs of
being in contempt of a High Court order. This comes after the
department withdrew an instruction allowing asylum seekers and
refugees to apply for permanent residence without giving up their
asylum or refugee status. The Department also withdrew an instruction
allowing asylum seekers and refugees to apply for temporary residence
without a valid passport.
Temporary residence visas include relatives` visas and work visas.
"The effect of this is huge, as asylum seekers are struggling to get
married and register the birth of their children with South African
spouses," the Forum of Immigration Practitioners said.
Another effect was that asylum seekers who did not have temporary
residence could not open a bank account, FIPSA said. This made them
vulnerable to crooks who preyed on them because they carried cash.
The directive signed by Mkuseli Apleni on 3 February 2016 explains
that the Department believes that asylum seekers (who are yet to be
granted refugee status) should not have their status changed, for
example given permanent or temporary residence, until they are
certified as refugees. Following this logic, the Department has
withdrawn a circular of 2008 which had allowed asylum seekers to apply
for permanent residence.
In the directive, Apleni, who is Director General of Home Affairs,
states, "I wish to advise all immigration officials that Departmental
Circular No. 10 of 2008 has fallen away since the 26th of May 2014 and
is hereby officially withdrawn. All applications for change of status
from asylum seeker permit to temporary residence visa which are still
pending in the system should be processed as per this directive
regardless of the date of application".

Apleni`s directive comes in spite of a 2003 Western Cape High Court
order. In the matter of Dabone and others vs the Minister of Home
Affairs, the court instructed that asylum seekers and refugees should
be able to apply for temporary residence permits and permanent
residence without having to cancel their asylum seeker status or give
up their refugee status.
Another important provision of the court order was that asylum seekers
or refugees do not need to be in possession of a valid passport for
their temporary residence permits to be processed or issued.
FIPSA said the Department`s new directive was "breaking the law" by
deviating from the court order.
"The Dabone Judgement is in fact a consent order of court which means
that as parties to the agreement the Department of Home Affairs have
agreed to it and that it is binding. As such it cannot be appealed to
a higher court and any deviation thereto constitutes a contempt of
court," said FIPSA.
FIPSA also said that VFS, which is the company that processes visa
documents, had stopped accepting applications for temporary or
permanent residence from refugees or asylum seekers.
FIPSA and other interested parties are to take the Department to court
on 21 April 2016, with Tashriq Ahmed representing them. FIPSA told
GroundUp that the Department had said it would defend the matter. "But
it is a consent order, so it is inconceivable what defence they can
mount. As we have seen before, Home Affairs have a pattern of just
appealing matters to frustrate clients as justice is expensive, in the
hope clients will run out of money."
FIPSA said asylum seekers and refugees were vulnerable and few
organisations took up their battle to win their rights under the
constitution.
The Department`s spokesperson promised on Friday to respond to
questions but has not yet done so.