Asylum seekers in SA 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 Star reports the court was handing down a judgment on an appeal against the decision of the 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 department successfully appealed to the SCA. At the top court, the department argued that its officials had no discretion to accept and consider applications for visas and permits made within SA borders.

However, 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 The circular was withdrawn in 2016 when the directive was introduced.

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,’ Theron said.

Full report in The Star (subscription needed)

Ahmed and Others v Minister of Home Affairs and Another