Asylum seekers turn to top court over visa bids

Source: Business Live, 15/05/2018

Appeal: Human rights lawyer Tashriq Ahmed argues that all foreigners
should be able to apply for visas.
A group of asylum seekers will argue in the Constitutional Court on
Tuesday that all foreigners, including asylum seekers and refugees,
in SA are entitled to apply for visas.
They are approaching the top court for leave to appeal against a
decision by the Supreme Court of Appeal in September 2017 that
overturned a high court judgment, which declared that a 2015
immigration directive by the Department of Home Affairs was invalid
and inconsistent with the Constitution.
The directive caused the withdrawal of a 2008 circular, which
confirmed that anyone classified as an asylum seeker or refugee under
the Refugees Act was allowed to apply for a visa or permit in terms
of the Immigration Act.
The circular provided that the only application a refugee could make
in terms of the Immigration Act was for permanent residency.
Human rights lawyer Tashriq Ahmed and three of his clients approached
the High Court in Cape Town after the asylum seekers’ applications
for asylum were denied.
One of the asylum seekers then applied for a visitor’s visa, provided
for in terms of the Immigration Act for the spouse of a work visa
holder, in order to remain with her husband and children in SA.
The Department of Home Affairs refused her application based on the
directive. The other two asylum seekers applied for critical skills
visas, but they were declined.
In setting aside the directive that had been issued by the
department, the high court found that it was inconsistent with the
Constitution.
The department then approached the Supreme Court of Appeal, which
overturned the ruling by the high court.
The Supreme Court of Appeal held that the general rule, subject to a
few exceptions, was that a person could apply for a visa or permit
only under the Immigration Act from outside the borders of SA and
that the three asylum seekers were not entitled to rely on the
Immigration Act as they were in SA.
The court found that the applicants were subject to the Refugees Act
and not the Immigration Act.
Ahmed and his clients will now argue in the Constitutional Court that
on a proper reading of both the Immigration Act and Refugees Act all
foreigners may apply for visas.
They are also arguing that the directive was beyond the department’s
legal power or authority as it was contrary to the objectives and
purposes of the Immigration Act.
The department is arguing that a person must be outside the country
in order to apply for a visa under the Immigration Act. It is
furthermore arguing that asylum seekers generally have no status
under the act when they are already in the country, as they are
covered by the Refugees Act.
The department wants the Constitutional Court to dismiss Ahmed and
his clients’ application for leave to appeal or, if leave is granted,
that the appeal be dismissed.