Constitutional Court Rules on Refugee Matter �` Can a Refugee apply for temporary or permanent residence

Source: SA Migration, 09/10/2018

The Constitutional Court handed down judgment in the application for
leave to appeal against an order of the Supreme Court of Appeal (SCA).
The SCA overturned a decision of the High Court of South Africa,
Western Cape Division, Cape Town (High Court) which declared the
Immigration Directive 21 of 2015 (the Directive) issued by the
Department of Home Affairs inconsistent with the Constitution, invalid
and set it aside.
In 2008 the Director-General of Home Affairs issued Circular 10 of
2008 (the Circular) which confirmed a court order to the effect that
asylum seekers and refugees, in terms of the Refugees Act 130 of 1998,
were allowed to apply for visas or permits under the Immigration Act
13 of 2002. The Circular was withdrawn in February 2016 when the
Directive was issued.
The first applicant, Mr Tashriq Ahmed, was an attorney specialising in
immigration law and the legal representative of the second to fourth
applicants, Ms Fahme, Mr Swinda, and Mr J Ahmed respectively, who were
all asylum seekers who had made applications for asylum in terms of
the Refugees Act. Their applications for asylum were denied. Ms Fahme
attempted to apply, under the Immigration Act, for a visitor’s visa as
her spouse and children were legally in South Africa; however an
official of the Department of Home Affairs (the Department) refused to
accept her application, citing the Directive as the reason. Mr Swinda
and Mr J Ahmed both applied, under the Immigration Act, for critical
skills visas, and both applications were declined.
The applicants approached the High Court seeking an order declaring
the Directive inconsistent with the Constitution and to have it set
aside. The High Court, on 21 September 2016, handed down judgment and
held that the Directive was arbitrary and liable to be set it aside as
it was irrational and not borne out of a proper interpretation of the
provisions in the context of the two Acts as a whole. With regard to
Ms Fahme, the Court held that her right to dignity had been violated.
In respect of Mr Swinda and Mr Ahmed, the Court held that it could
find no reason why an unsuccessful asylum seeker should be barred from
applying for temporary work rights if they met the requirements and
that this interpretation better promotes the objects and purposes of
the Immigration Act.
Dissatisfied with the outcome, the respondents approached the SCA. On
26 September 2017, the SCA held that the High Court had erred in its
interpretation of the Immigration Act and that an application for a
visa by a foreigner must be made outside the Republic and not within
South Africa. The SCA held that the High Court’s conclusion was based
on an erroneous interpretation of the Immigration Act and that asylum
seekers are subject to the Refugees Act which is a separate regime to
that of the Immigration Act. As such it upheld the appeal and the High
Court order was set aside.
In this Court the applicants submitted that the provisions of the
Immigration Act that relate to temporary and permanent residence
permits referred only to “foreigners” and did not expressly exclude
asylum seekers. The applicants averred that the fact that section
27(d) of the Immigration Act makes express provision for refugees to
apply for permanent residence five years after their recognition as a
refugee did not mean that an asylum seeker or a refugee may not be
eligible for any other permit in terms of the Immigration Act. In
addition, they argued that the Directive is unlawful as it is ultra
vires (beyond its legal power or authority) and unjustifiably limited
the right to dignity of asylum seekers with familial relations in the
country
The respondents supported the conclusion of the SCA. The respondents
submitted that the Directive was consistent with the legislative and
regulatory framework of the Refugees Act and Immigration Act. They
further contended that even if the Directive was invalid, the
officials of the Department had no discretion to accept and consider
applications made within the borders of the country.
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This Court held that to the extent that the Directive prohibited the
second applicant, and similarly placed asylum seekers from applying
for permanent residence permits while inside the Republic of South
Africa, it was declared inconsistent with Regulation 23 of the
Immigration Regulations, 2014 and invalid. The Court further held
that, to the extent that the Directive imposed a blanket ban on asylum
seekers from applying for temporary residence visas without provision
for an exemption application under section 31(2)(c), it was
inconsistent with the Immigration Act and invalid.
Order Granted :
To the extent that Immigration Directive 21 of 2015, issued by the
Director General of the Department of Home Affairs on 3 February 2016,
imposes a blanket ban on asylum seekers from applying for visas
without provision for an exemption application under section 31(2)(c)
of the Immigration Act 13 of 2002, it is declared inconsistent with
the Immigration Act 13 of 2002 and invalid.
To the extent that Immigration Directive 21 of 2015, issued by the
Director - General of the Department of Home Affairs on 3 February
2016, prohibits asylum seekers from applying for permanent residence
permits while inside the Republic of South Africa, it is declared
inconsistent with regulation 23 of the Immigration Regulations, 2014
published under Government Notice R413 in Government Gazette 37697 of
22 May 2014 and invalid.