Court strikes down Home Affairs directive on asylum seekers and refugees

“High time questions are asked why the department continues to waste taxpayer’s money” with fruitless litigation, says lawyer

A Department of Home Affairs rule that asylum seekers and refugees may only apply for permanent residence if they give up their asylum or refugee status has been declared inconsistent with the Constitution and invalid by the Western Cape High Court.

The case was taken to court earlier this year by the Forum for Immigration Practitioners (FIPSA) along with other interested parties who believed that Home Affairs was in contempt of a 2003 High Court order.

In 2003, the court issued an order in the matter of Dabone and others vs the Minister of Home Affairs, compelling Home Affairs to allow asylum seekers and refugees to apply for permanent residence without having to cancel their asylum seeker status or give up their refugee status. The order also stated that asylum seekers and refugees do not need to be in possession of a valid passport to apply for a temporary or permanent residence permit.

Home Affairs initially complied with this order, issuing a directive in 2008 citing the 2003 judgement. Then, in a directive signed by the Director-General of Home Affairs Mkuseli Apleni in February this year, Home Affairs issued a new instruction withdrawing their circular of 2008, stating that “no change of condition or status should be premised on the provisions of the Immigration Act for a holder of an asylum seeker permit whose claim to asylum has not been formally recognized”.

FIPSA noted that without a work visa, many jobs were out of reach to asylum seekers, as asylum documents are often not recognised.