Court slams Home Affairs abuse of asylum seekers rights

Source: Tashriq Ahmed / FIPSA – Forum of Immigration Practitioners, 28/03/2016

Press Release

Court slams Home Affairs abuse of asylum seekers rights

In a far reaching judgement dated 21 September 2016, the Cape Town
High Court of South Africa handed down a very comprehensive judgement
in the matter of Tashriq Ahmed & others vs The Department of Home
Affairs .

In terms of said judgement, the Court ordered The Department of Home
Affairs to forthwith, allow Asylum Seekers (including failed Asylum
Seekers ) and Refugees the right to apply for appropriate visas, in
terms of the South African Immigration Act .

In this classic David and Goliath battle , this segment of the
community has been vindicated by the judgement, whereby the judge
emphatically dealt with the matter of the treatment of Asylum Seekers
and Refugees by the host nation, i.e. : South Africa and its
international and constitutional obligations vs the frustration
experienced by authorities as they deal with the international
phenomena of burgeoning Asylum Seekers and Refugees numbers . It is
thanks to the likes of attorney Tashriq Ahmed and FIPSA ( Forum for
Immigration Practitioners South Africa) who took it upon themselves,
this Herculean task and have succeeded in bringing justice to the
voiceless community of Asylum Seekers and Refugees .

In terms of said judgement, the court ordered Immigration Directive
21 of 2015 (which Directive bars Asylum Seekers and Refugees from
applying for change of status to any Visa or Permit in terms of the
South Africa Immigration Act) to be inconsistent with the Constitution
of the Republic of South Africa and invalid and that it be set aside
(http://www.vfsglobal.com/dha/southafrica/pdf/Immigration_Directive_No_21_2015_120216.pdf).
In terms of said Directive, signed by Mr Mkuseli Apleni on 3 February
2016, it explains that The Department of Home Affairs believes that
Asylum Seekers (and those who had their asylum status rejected )
should not be allowed to apply for change of status (for example :
granted permanent residence until they are certified as Refugees).
Following this logic, The Department of Home Affairs, withdrew,
Circular 10 of 2008, which had allowed Asylum Seekers and Refugees the
right to apply for temporary and permanent residence under the SA
Immigration Act.

It must be said that during this court process, The Department of Home
Affairs has once again resorted to their normal delaying tactics by
not filing documents timeously and requesting postponements and not
filing documents timeously during the trial and court proceedings .
Recently, there has been a slew of judgements against The Department
of Home Affairs and one must ask the question as to whether they have
the best legal counsel. They are currently in a phase of litigating
and appealing against sound judgements because they know they are
dealing with a marginalised and poor segment of our community who
don`t have the funding to contest expensive litigation . Perhaps it is
high time questions are asked in Parliament and other forums as to why
The Department of Home Affairs continues to waste taxpayers money .

Immigration lawyers have accused The Department of Home Affairs of
being in contempt of a High Court order after The Department of Home
Affairs unilaterally withdrew an instruction allowing Asylum Seekers
and Refugees the right to apply for permanent residence without giving
up their asylum or refugee status and to apply for temporary and
permanent residence without a valid passport.

Mr Aplenis' Directive 21 of 2015, was issued 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 permitted to apply for temporary residence
visas and permanent residence status, without having to cancel or
give us their asylum seeker or refugee status.

Another important provision of that court order, was that Asylum
Seekers and Refugees do not need to be in possession of a valid
passport for their temporary residence visas to be processed or issued.

FIPSA also said that VFS, which is the company that processes visa
documents, had stopped accepting applications for temporary and
permanent residence from Asylum Seekers and Refugees. It will be
interesting to note as to whether The Department of Home Affairs will
comply with this current judgement or revert to its normal practice of
ignoring court orders .

FIPSA and other interested parties took The Department of Home Affairs
to court on 21 April 2016, with Tashriq Ahmed representing them. This
action was in response to an existing Court Order which was in effect
since 2003 .



Released by:

Tashriq Ahmed / FIPSA – Forum of Immigration Practitioners

Release date: 28 March 2016