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Breaking News - Court slams Home Affairs abuse of asylum seekers rights

Source: www.sami.co.za, 22/09/2016


In a very comprehensive judgment handed down today in the High Court
of South Africa , Western Cape Division, Immigration Directive 21 of
2015 barring Refugees and Asylum seekers form applying for a change of
status to any Visa or Permit in terms of the Immigration Act has been
declared to be inconsistent with the Constitution of the Republic and
invalid and set aside.


Following a 53-page comprehensive judgement Acting Judge Sher dealt
with a number of issues as he attempted to answer the question, is
there anything in law and principle prohibiting applications for visas
and permits from those in possession of asylum seeker permits and
refugee permits? The Judge drew from the historical context of the
Refugee law regime, International instruments as well as the existing
body of immigration jurisprudence and concluded that an interpretation
of the existing Refugees Act and proposed amendment Act, that would
lead to the conclusion that Asylum Seekers and Refugees are not
permitted to apply for a Visa or Permit in terms of the immigration
Act is irrational and falls foul of the principle of legality and rule
of law. The court thus concluded that the Director General in issuing
Directive 21 acted arbitrarily and irrationally.


An important aspect of his judgement was that even failed asylum
seekers were permitted to apply for a visa in terms if the
immigration Act. He pointed to the provisions of section 32 wherein
illegal foreigners are allowed to approach the Director General for
authorisation to apply for a status and submitted that the same
section was applicable to failed asylum seekers who would have been
rendered illegal on the basis of the rejected asylum seeker
application. This is an important clarification as this area had been
subject to much debate.


The effect of this judgement is that Immigration Directive 21 has been
set aside on the ground that it is arbitrary an unconstitutional.
Although the court did not make a declaratory order compelling Home
Affairs to comply with the order of the court in the Dabone case the
court found that its common cause that in essence Circular 10 of 2008
regulating this process would be reinstated.

Holders of asylum
seeker permits and refugees may now apply for the relevant immigration
permits and visas.


We have been instrumental in assisting the lawyer Tashriq Ahmed and
others to bring this landmark judgment to its successful conclusion
says Rod Maxwell, CEO, SA Migration International, www.sami.co.za


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