A group of asylum seekers will argue in the Constitutional Court today that all foreigners, including asylum seekers and refugees, in SA are entitled to apply for visas.

A Business Day report notes they are approaching the court for leave to appeal against a decision by the SCA in September 2017 that overturned a High Court judgment, which declared that a 2015 immigration directive by the Department of Home Affairs was invalid and inconsistent with the Constitution.

The SCA, which held that the general rule – subject to a few exceptions – was that a person could apply for a visa or permit only under the Immigration Act from outside the borders of SA. It found that the applicants were subject to the Refugees Act and not the Immigration Act. Human rights lawyer Tashriq Ahmed and his clients will now argue in the Constitutional Court that on a proper reading of both the Immigration Act and Refugees Act all foreigners may apply for visas.

They are also arguing that the directive was beyond the department’s legal power or authority as it was contrary to the objectives and purposes of the Immigration Act. The department is arguing that a person must be outside the country in order to apply for a visa under the Immigration Act. It is furthermore arguing that asylum seekers generally have no status under the Act when they are already in the country, as they are covered by the Refugees Act.

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