Introduction
The latest DHA Directive on Immigration Act has generated significant debate. While it offers relief for waiver and appeal applicants, it introduces inconsistencies that raise legal concerns and contradict Constitutional Court precedent.
Scope of Application
The Directive is not applicable to main visa or permanent residence applications, assuming no backlog exists in those categories. Instead, it applies to:
– Applicants with pending waiver applications, and
– Applicants with pending appeals.
For background on waiver processes, see the Home Affairs Waiver Guidelines.
Extension to PR Appeals
The Directive extends protection to individuals with pending Permanent Residence (PR) appeals. This is unusual because the Immigration Act, particularly section 10(8), only provides legal protection for temporary residence visas, not permanent residence.
Accordingly, this extension creates a legal inconsistency.
Legal Inconsistency with Constitutional Court Precedent
In Ahmed v Minister of Home Affairs, the Constitutional Court made it clear that Directives cannot create new rights outside the Immigration Act. This ruling aligns with similar case law (see our internal analysis of immigration judgments: /immigration-legal-updates).
By extending protection to PR appeals, the Directive risks being declared ultra vires, meaning beyond the powers granted by law.
Practical Implications
– For waiver and temporary residence applicants, the Directive provides much-needed clarity.
– For PR applicants, however, the Directive creates a fragile protection which may collapse if challenged in court.
Conclusion
The DHA Directive on Immigration Act demonstrates the Department’s effort to address backlogs but also exposes a dangerous misalignment with legislation. Policy should not outpace statute — a sustainable solution requires legislative reform, not administrative overreach.