Asylum seekers win legal right to apply for SA permits

Source: The Star Early Edition, 10/10/2018

ASYLUM seekers in South Africa yesterday secured a major legal victory
after the Constitutional Court ruled that they were eligible to apply
for visas or a temporary residence permit, even if their application
for asylum was rejected.
The apex court was handing down a judgment which was brought as an
appeal against the decision of the Supreme Court of Appeal (SCA),
relating to applicants who had been refused visas or permits under the
Immigration Act.
After her application for asylum was denied, Arifa Musaddik Fahme
tried to apply for a visitor’s visa under the Immigration Act, as her
husband and children were already legally living in the country, but
the Department of Home Affairs refused to accept the application.
Kuzikesa Swinda and Jabbar Ahmed also used the act to apply for
critical skills visas, but their applications were also denied, all
because of the department’s 2016 immigration directive barring
refugees and asylum seekers from applying for visas under the act.
In 2016, the Western Cape High Court declared the directive as
irrational as it was arbitrary, adding that Fahme’s rights had been
violated.
The court also held that there was no reason Swinda and Ahmed were
barred from applying for temporary work permits if they met the
requirements.
The department successfully appealed against the ruling at the SCA.
The applicants approached the Concourt, where the department argued
that its officials had no discretion to accept and consider
applications for visas and permits made within the borders of the
country.
Yesterday, Justice Leona Theron said asylum seekers must be allowed to
apply for visas or permits under the act, and that they had to be
granted if they met the requirements, adding that the directive was
invalid as it was against a circular that was created by the
department to cater for the circumstances of refugees and asylum seekers.
The circular was withdrawn in 2016 when the directive was introduced.
“Asylum seekers are often not in possession of valid passports or
identity documents and not in the position to readily obtain their
documents. Within this, the department circulated the circular to its
employees and instructed them to accept and consider applications for
visas or permits made by asylum seekers not in position of valid
passports. The purpose of the circular was to ameliorate the
precarious position of asylum seekers and to afford them the
opportunity to apply for visas or permits in terms of Immigration Act
without a valid passport.
“It must be stressed that no administrative hurdles, relating to the
possession of passports and the like, may be introduced by the
department in order to disallow or discourage these kinds of
applications,” Justice Theron said.