On the 3rd of February 2016 the Director General of the Department of Home Affairs issued an Immigration Directive number 21 withdrawing Circular 10 of 2008 . The Circular had been issued in the aftermath of one the landmark cases in the South African Immigration. The case, commonly known as The Dabone case , opened the door for Refugees and Asylum seekers allowing these individuals to apply for any immigration permit. Many would have recently received shocking rejections to their applications from the asylum seeker or refugee permits and left wondering how on earth did this happen? In this article we will look the historical background to asylum seekers and refugees rights in terms of the immigration Act and the changes brought about by the Dabone case. We will also look at the Directive 21 and answer the question in many of the affected peoples minds of, what next?
In the years before the landmark ruling , asylum seekers were prohibited from applying for a permit in terms of the Immigration Act . The only option available to an asylum seeker was to wait for his or her application for asylum to be recognised and then after 5 years of continuous residence as a refugee apply for an immigration permit in terms of section 27(c) of the Refugees Act read with section 27(d) of the Immigration Act. This of course meant that the applicant had to first secure certification from the Standing Committee on Refugee Affairs (SCRA) , confirming that the applicant would be a refugee indefinitely. This obviously meant that if an asylum seekers claims were rejected then they would not be recognised a refugee and never be able to apply for an immigration permit. The other issue that arose from this process was that the refugee had to give up his or her claim for asylum before applying. Thus if the application as rejected the applicant would find themselves susceptible to deportation. The situation was made worse by the delays in the processing of applications at every stage. The application for asylum often took many years to be finalised and the certification process also took much longer. Many will find that the situation remains largely unchanged with the added sting that currently fewer asylum claims are being approved and far less certifications are being issued.
Dabone and others versus the Minister of Home Affairs and another (case number 7526/03).
The case is an unreported judgement , however it was brought by Dabone and others to challenge certain practices of the Department of Home Affairs in relation to asylum seekers and refugees rights to apply for an immigration permit. The result of the challenge was an order by consent wherein it was ordered that , Asylum seekers and refugees could apply for any immigration permit so long as they qualified for it. More importantly that such application and the subsequent issue of such a permit did not result in the cancellation of the asylum seeker permit or refugee status. The rationale being that should for whatever reason the immigration permit cease to be valid then former asylum seeker or refugee would not be deported back to the same country that he or she fled in the first place. The other concessions were that refugees and Asylum seekers were not required to produce passports when applying for a permit in terms of the immigration Act.
Immigration Directive 21 of 2016
The effect of this Directive is to reverse all the concessions arising from the Dabone order. Therefore as of the 3rd of February 2016 no applications from asylum seekers or refugees were being approved. Currently VFS no longer accepts any applications from such individuals. However I am certain that this decision was taken well before the Directive 21 was issued because since early 2015 one noticed a trend where fewer applications from asylum seeker permits or refugee permits were being approved.
The Directive among other things reinstates the requirement of having a passport, prior certification by the standing committee and cancellation of refugee and asylum seeker permits. Perhaps what is more surprising about this Directive is its retrospective effect. All pending applications from asylum seekers and refugees are being considered in light of this directive notwithstanding the fact that they were lodged prior to the issuing of the Directive.
What Next ?
Currently this latest move by the Director General is being challenged before High Court. The case was set down for the 21st of April 2016 however, it was postponed to the 6th of June 2016 as the DHA had not filed it answering papers and was so ordered. This means that all applicants will have to wait for the court to hand down is judgement in the matter. It is difficult ,however , to see a result in favour of the DHA. At present they are in contempt of the 2003 court order so it will be interesting to see what sort of defence the DHA will conjure up. Moreover the 2003 order was one by consent meaning the parties came to an agreement and now DHA is reneging on its own agreement.
Another issue that I hope will be clarified by the court is the legal standing of the Directives issued by the Director General. Are Directives another form of subordinate legislation? If so , does the DG have such powers in terms of the Immigration Act? If so why are the Directives not readily available to the public and kept a secret yet having an impact on the broader public. I can certainly say that the DG does have powers to issue internal directives to guide the Department in the exercise of its functions , so long as these do not have the effect of changing existing laws and regulations. Section 3 of the Act reserves these powers exclusively for the Minister. We wait in anticipation for the 6th of June.
By Munyaradzi Nkomo
Managing Director and Immigration Specialist
Strategies Migration Services SA
tel: 011 064 4875
cell: 074 337 0269