Recently we have encountered a number of Zimbabwe Exemption Permit ( ZEP) applicants whose applications were rejected for having a negative police record. Unlike other rejections that are handled in terms of sections 8(3) to 8(6) of the Immigration Act, the applicants were directed to file representations to the court within 10 working days or face deportation. Now obviously to the person receiving this decision is left with more questions than answers. Why have they been directed to the court and not to appeal as per the usual process and what is the process of filing representations through the court ?
Procedurally this is correct. The ZEP is an application in terms of section 31(2)(c) of the Immigration Act. This is a direct application to The Minister of Home Affairs to grant a person the Zimbabwe Exemption Permit provided he or she meets the requirements of this particular exemption. The Minister is the member of the Executive who has the final authority on all matters relating to Immigration therefore if she rejects an application the decision can only be reviewed by the High Court sitting in a Judicial Review application. This means that the person whose application is rejected does not make representations to the High Court as directed by the rejection letter but rather prepares an application to the High Court to review the decision of the Minister.
The Judicial Review process is provided for in section 6 of the Promotion of Administrative Justice Act 3 of 2000 or (PAJA). Section 6(2) provides the grounds on which a Court or Tribunal has the power to Judicially review an administrative action. The relevant grounds to the ZEP applications would be:
In terms of section 6(2)(a)(iii) if the administrator who took the decision was biased or reasonably suspected of bias or;
In terms of Section 6(2)(d) The Action was materially influenced by an error of law and alternatively;
In terms of 6(2)(e)(iii) Because irrelevant considerations were taken into account or relevant considerations were not considered.
A decision to reject a ZEP application on the basis of a criminal record would be an example of an irrelevant consideration. The Minister in her announcement in September 2017 did not expressly provide that only persons without a criminal record would be granted the ZEP. Of the conditions and requirements provided in her press release there was no mention of this being a requirement. This is what distinguished this renewal process from the one announced in 2014. In that instance it was expressly provided that persons with criminal records would not be granted the then ZSP permit. Therefore, considering a person’s criminal record in this instance is irrelevant.
Another relevant issue not considered in the decision above would be that not every criminal offence would lead to a person being denied a visa or a Permanent residence permit. I have written this topic before in a previous blog post click here to read more about it. The essence of that post is that though the Minister has the discretion to grant or reject an application that discretion can only be exercised within the confines of the Immigration Act. The Act provides for instances when an offence disqualifies a person from a being granted a Visa or Permanent residence therefore if the applicants offence does not fall within these exclusions a rejection on this basis would be unlawful. Of major concern here is that some of the beneficiaries of the Zimbabwe dispensation project have criminal records that arose from immigration offences. These offences were subject to a blanket amnesty granted to the applicants in 2009 when the project started . A number of these offenses were never expunged despite the amnesty given, therefore to reject an application on the basis of such an offence would also go against the very purpose the project sought to achieve when it was first announced.
For assistance with your immigration matter you can contact us at our offices and speak to one of our specialists.
Munyaradzi Nkomo
Lead immigration specialist at Strategies Migration Services SA
Email: munya@immigrationspecialists.co.za
Cell: +2774 337 0269
tel : +2711 463 5011
www.immigrationspecialists.co.za