In a very comprehensive judgment handed down today in the High Court of South Africa , Western Cape Division, Immigration Directive 21 of 2015 barring Refugees and Asylum seekers form applying for a change of status to any Visa or Permit in terms of the Immigration Act has been declared to be inconsistent with the Constitution of the Republic and invalid and set aside.

Following a 53-page comprehensive judgement Acting Judge Sher dealt with a number of issues as he attempted to answer the question, is there anything in law and principle prohibiting applications for visas and permits from those in possession of asylum seeker permits and refugee permits? The Judge drew from the historical context of the Refugee law regime, International instruments as well as the existing body of immigration jurisprudence and concluded that an interpretation of the existing Refugees Act and proposed amendment Act, that would lead to the conclusion that Asylum Seekers and Refugees are not permitted to apply for a Visa or Permit in terms of the immigration Act is irrational and falls foul of the principle of legality and rule of law. The court thus concluded that the Director General in issuing Directive 21 acted arbitrarily and irrationally.

An important aspect of  his judgement was that  even  failed asylum seekers  were permitted to apply for a visa in terms if the immigration Act. He pointed to the provisions of section 32 wherein  illegal  foreigners are allowed to approach the Director General  for authorisation to apply for a status and submitted that the same section was applicable to  failed asylum seekers who would have been rendered illegal on the basis of the rejected asylum seeker  application. This is an important clarification as this area had been subject to much debate.

The effect of this judgement is that Immigration Directive 21 has been set aside on the ground that it is arbitrary an unconstitutional. Although the court did not make a declaratory order compelling Home Affairs to comply with the order of the court in the Dabone case the court found that its common cause that in essence Circular 10 of 2008 regulating this process would be reinstated. Holders of asylum seeker permits and refugees may now apply for the relevant immigration permits and visas.

Munyaradzi Nkomo

Lead immigration specialist at Strategies Migration Services SA


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