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Asylum seekers can now apply for residence visas

Source: GroundUp, 27/11/2018


Background
The case was brought by three asylum seekers whose applications
for refugee status had been refused. They each then made
applications for visas in terms of the Immigration Act.
Arifa Fahme applied for a visitor’s visa so that she could remain
in South Africa with her husband and children. VFS Global, a
company contracted by Home Affairs to process immigration
applications, rejected her application because she was an asylum
seeker. The company said that it cannot issue temporary residence
visas to asylum seekers.
Kuzikesa Swinda and Jabbar Ahmed each applied for a critical
skills visa. Their applications were rejected because their asylum
applications were before the Refugee Appeal Board.
The main reason for all of the rejections however was a directive
issued by Home Affairs in February 2016. This directive said that
asylum seekers are only entitled to visas under the Immigration
Act when they have been certified as refugees by the Standing
Committee for Refugee Affairs. This effectively barred asylum
seekers from applying for any type of visa.
High Court and Supreme Court of Appeal
Fahme, Swinda and Ahmed approached the High Court to set aside the
directive. The High Court found that the Immigration Act and
Refugees Act are complementary and not mutually exclusive. It
found that the Immigration Act entitled foreign nationals to apply
for a visa or permit.
The court reasoned that there was no reason to exclude asylum
seekers from this definition. Also, the court found that denying
Fahme the right to be with her family unjustifiably infringed her
right to dignity. It ruled that Swinda and Ahmed should be
entitled to critical skills visas if they otherwise met the
requirements of the legislation.
Home Affairs appealed against the decision to the Supreme Court of
Appeal (SCA). The SCA found in its favour. In a nutshell, the SCA
found that it was impossible for the applicants to apply for
permits in terms of the Immigration Act because such applications
had to be made from outside the country.
The case then went to the Constitutional Court.
Constitutional Court proceedings
The Constitutional Court considered two main issues. First,
whether an asylum seeker can apply for a permit or visa in terms
of the Immigration Act. Second, whether the Directive should be
set aside. PASSOP (People Against Suffering, Oppression and
Poverty) joined the case as a friend of the Court.
Can an asylum seeker apply for a permit or visa in terms of the
Immigration Act?
An asylum seeker is a person who has arrived in South Africa who
asks to become a refugee. A person is eligible to be a refugee if
they are fleeing another country due to persecution for their
political beliefs or their membership of a particular social
group. When a person enters South Africa as an asylum seeker they
may be issued an asylum transit visa. This visa is valid for five
days. During this period an asylum seeker must report to a Refugee
Reception Office to apply for refugee status. If the application
for refugee status is successful, the person is entitled to live
and work in South Africa and may apply for permanent residence.
The Immigration Act allows any foreigner to stay in South Africa
by applying for two categories of applications: temporary
residence permits or permanent resident permits. The Act includes
several different temporary residence visas such as spousal visas
and critical skills visas.
An application for a temporary residence visa must be made at a
South African embassy in the country in which that person lives.
The court found therefore that Ahmed and Swinda could not have
applied for their permits in South Africa. Those applications had
to be made from outside the country. The court found therefore
that the SCA’s ruling in this regard was correct.
But the court then considered whether the directive should be set
aside. It found that the directive imposed a blanket ban on asylum
seekers from applying for a temporary residence permit or a
permanent residence permit. The directive only enabled asylum
seekers to apply for a permanent residence permit if they had been
certified indefinitely as a refugee by the Standing Committee for
Refugee Affairs.
The court then considered whether this particular interpretation
of the Refugees Act and Immigration Act was justifiable.
It pointed out that unlike applications for temporary residence
permits, applications for permanent residence permits do not have
to be made from outside the country. Also, the court said, the
Immigration Act entitled “any foreigner” to apply for a permanent
residence permit and there was no reason to exclude asylum seekers
from this definition.
The court noted that to request Fahme to leave the country and
leave her family behind would be unfair and unjust.
For all these reasons the court found that to the extent that the
directive imposed a blanket ban on an asylum seeker from applying
for a permanent residence permit it was unlawful and must be set
aside.
What about the applications of Swinda and Ahmed? The court said
that unfortunately they were not in the same position as Fahme.
Critical skills visas are a category of temporary residence
permits visas and such applications can only be made from outside
the country. However, the court pointed out that the Immigration
Act entitles a person applying for a temporary residence permit to
apply for an exemption from the requirements of the Act. This
meant that Swinda and Ahmed were entitled to apply for an
exemption in order to apply for their visas locally. The court
pointed out that there was good reason to allow asylum seekers to
apply for an exemption because they often do not have proper
documentation and cannot return to their country of origin. The
court found that to the extent that the directive imposes a
blanket ban on asylum seekers from applying for a temporary
residence permit it was unlawful and must be set aside.
Why this judgment is important
Having worked in a state institution assisting refugees and asylum
seekers for more than a year, I have witnessed first hand their
plight. The asylum system in South Africa is critically
understaffed and under-resourced. Many asylum seekers are
struggling to regularise their stay and have no proper
documentation. They need this in order to open bank accounts, find
employment, run their businesses and improve their quality of
life.
This judgment provides an alternative avenue for them to make a
home in South Africa by applying for permits in terms of the
Immigration Act. Hopefully the judgment will be a reminder that
South Africa belongs to all who live in it, whatever their
background or immigration status.


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