Asylum seekers win legal right to apply for SA permits

Asylum seekers win legal right to apply for SA permits
10 Oct 2018 – The Star Early Edition
ASYLUM seekers in South Africa yesterday secured a major legal victory after the Constitutional Court ruled that they were eligible to apply for visas or a temporary residence permit, even if their application for asylum was rejected.
The apex court was handing down a judgment which was brought as an appeal against the decision of the Supreme Court of Appeal (SCA), relating to applicants who had been refused visas or permits under the Immigration Act.
After her application for asylum was denied, Arifa Musaddik Fahme tried to apply for a visitor’s visa under the Immigration Act, as her husband and children were already legally living in the country, but the Department of Home Affairs refused to accept the application.
Kuzikesa Swinda and Jabbar Ahmed also used the act to apply for critical skills visas, but their applications were also denied, all because of the department’s 2016 immigration directive barring refugees and asylum seekers from applying for visas under the act.
In 2016, the Western Cape High Court declared the directive as irrational as it was arbitrary, adding that Fahme’s rights had been violated.
The court also held that there was no reason Swinda and Ahmed were barred from applying for temporary work permits if they met the requirements.
The department successfully appealed against the ruling at the SCA.
The applicants approached the Concourt, where the department argued that its officials had no discretion to accept and consider applications for visas and permits made within the borders of the country.
Yesterday, Justice Leona Theron said asylum seekers must be allowed to apply for visas or permits under the act, and that they had to be granted if they met the requirements, adding that the directive was invalid as it was against a circular that was created by the department to cater for the circumstances of refugees and asylum seekers.
The circular was withdrawn in 2016 when the directive was introduced.
“Asylum seekers are often not in possession of valid passports or identity documents and not in the position to readily obtain their documents. Within this, the department circulated the circular to its employees and instructed them to accept and consider applications for visas or permits made by asylum seekers not in position of valid passports. The purpose of the circular was to ameliorate the precarious position of asylum seekers and to afford them the opportunity to apply for visas or permits in terms of Immigration Act without a valid passport.
“It must be stressed that no administrative hurdles, relating to the possession of passports and the like, may be introduced by the department in order to disallow or discourage these kinds of applications,” Justice Theron said.

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