Court strikes down Home Affairs directive on asylum seekers and refugees."High time questions are asked why the department continues to waste taxpayer`s money" with fruitless litigation, says lawyer

Source: Groundup, 23/09/2016

A Department of Home Affairs rule that asylum seekers and refugees may
only apply for temporary or permanent residence if they give up their
asylum or refugee status has been declared inconsistent with the
Constitution and invalid by the Western Cape High Court.


The case was taken to court earlier this year by the Forum for
Immigration Practitioners (FIPSA) along with other interested parties
who believed that Home Affairs was in contempt of a 2003 High Court
order.


In 2003, the court issued an order in the matter of Dabone and
others vs the Minister of Home Affairs, compelling Home Affairs to
allow asylum seekers and refugees to apply for temporary and permanent
residence without having to cancel their asylum seeker status or give
up their refugee status. The order also stated that asylum seekers and
refugees do not need to be in possession of a valid passport to apply
for a temporary residence permit.


Home Affairs initially complied with this order, issuing a directive
in 2008 citing the 2003 judgement. Then, in a directive signed by the
Director-General of Home Affairs Mkuseli Apleni in February this year,
Home Affairs issued a new instruction withdrawing their circular of
2008, stating that "no change of condition or status should be
premised on the provisions of the Immigration Act for a holder of an
asylum seeker permit whose claim to asylum has not been formally
recognized".


FIPSA noted that without a work visa, many jobs were out of reach to
asylum seekers, as asylum documents are often not recognised.


In court, Home Affairs argued that the Dabone order was "clearly
incorrect" and unconstitutional.


In the judgment, Acting Judge Sher said that "it would not be proper
to express any view in regard to the Dabone order" but that in the
directive issued by Home Affairs that withdrew the 2008 directive,
Home Affairs "acted arbitrarily and irrationally" and the directive
signed this year must be set aside.


Calling the case a "David and Goliath battle", Tashriq Ahmed, who
represented the applicants in court, stated that during the court
process Home Affairs "once again resorted to their normal delaying
tactics by not filing documents timeously and requesting
postponements".

(See GroundUp`s report here
"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 taxpayer`s money," said
Ahmed.