An application for leave to appeal against a decision of the Supreme Court of Appeal was settled this week in South Africa’s Constitutional Court. The case concerns the question whether asylum seekers, including those whose applications for refugee status have been refused, are eligible to apply for other visas and immigration permits in terms of the Immigration Act.1 The applicants also sought an order setting aside a Department of Home Affairs (Department) directive, Immigration Directive 21 of 2015 (Directive), which requires Departmental functionaries to refuse all applications for temporary and permanent residence visas made by the holder of an asylum seeker permit.
The order issued is as follows:
- Leave to appeal is granted.
- The appeal is upheld and the order of the Supreme Court of Appeal is set aside.
- To the extent that Immigration Directive 21 of 2015, issued by the Director-General of the Department of Home Affairs on 3 February 2016, imposes a blanket ban on asylum seekers from applying for visas without provision for an exemption application under section 31(2)(c) of the Immigration Act 13 of 2002, it is declared inconsistent with the Immigration Act 13 of 2002 and invalid.
- To the extent that Immigration Directive 21 of 2015, issued by the Director-General of the Department of Home Affairs on 3 February 2016, prohibits asylum seekers from applying for permanent residence permits while inside the Republic of South Africa, it is declared inconsistent with Regulation 23 of the Immigration Regulations, 2014 published under Government Notice R413 in Government Gazette 37697 of 22 May 2014 and invalid.
- There is no order as to costs.
While this is good news for SA’s asylum seekers, it remains to be seen what the Department of Home Affairs’ reaction to the judgement will be.
To read the full case details, click here.
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