Taking “refuge” in the Immigration Act – Asylum seekers and refugees

asylum seekers 1
23 Nov 2018

Foreigners seeking asylum and refuge in the Republic of South Africa (“RSA”) should take note of the circumstances surrounding such applications and the requirements when applying therefor. The previous blanket ban on asylum seekers has recently been set aside in the matter of Ahmed and Others v Minister of Home Affairs and Another (“Ahmed Case”).

Asylum is the process of someone who has arrived in South Africa and applied for asylum to be recognised as a refugee. Both groups are protected under the Refugees Act No. 130 of 1998 (“Refugees Act”) but their rights vary. This article will briefly discuss the legal position of asylum seekers applying for permits or visas within RSA.

In the Ahmed Case the Constitutional Court (“CC”) granted leave to appeal against a previous order of the Supreme Court of Appeal (“SCA”). The SCA overturned a decision of the High Court of South Africa which ruled that the Immigration Directive No. 21 of 2015 (“Directive”) issued by the Department of Home Affairs (“DoHA”) is inconsistent with the Immigration Act No. 13 of 2002 (“Immigration Act”) and further ruled that the Directive should be set aside.

In terms of the Directive, the DoHA was of the view 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 recognised by the Standing Committee for Refugee Affairs (“SCRA”). Section 27(c) of the Refugees Act stipulates that a refugee is entitled to apply for an immigration permit after 5 (five) years’ continuous residence in RSA from the date on which he or she was granted asylum, if the SCRA certifies that he or she will remain a refugee indefinitely.

The immigration permit referred to above, is the permanent residence permit referred to in Section 27(d) of the Immigration Act and therefore a holder of an asylum seeker permit, who has not been certified by the SCRA as a refugee may not apply for temporary or permanent residence permits. The applicants in the Ahmed Case made application for asylum under the Refugees Act and such applications were denied. The applicants attempted to apply for asylum under the Immigration Act and officials of the DoHA refused the applications based on the Directive.

In the CC the applicants submitted that the provisions of the Immigration Act referred to “foreigners” and did not expressly exclude asylum seekers. The applicants further contended that the wording of the Immigration Act which allows asylum seekers to apply for permanent residence permits after 5 (five) years’ continuous stay in RSA did not expressly exclude any other permit in terms of the Immigration Act. The applicants further argued that the Directive should be set aside as it unjustifiably limited the right to dignity of asylum seekers with family relations in RSA.

The CC confirmed the findings of the SCA that asylum seekers are subject to the requirement that all applications for visas and/or permits must be made from outside the borders of RSA and the applicants were not exempted from this requirement. The CC further ruled on the validity of the Directive and held that to the extent that the Directive prevented asylum seekers from applying for permanent residence permits while inside RSA, it is inconsistent with the immigration regulations and is invalid.

The ruling of the CC assists asylum seekers in precarious positions and affords them the opportunity to apply for visas and/or permits in terms of the Immigration Act, within RSA, after 5 (five) years’ continuous stay in RSA. The CC further ruled that the DoHA may not introduce any future administrative hurdles to discourage these kinds of applications. The ruling of the CC abolished the blanket ban on asylum seekers applying for visas without provision for an exemption application in terms of the Immigration Act.

The ruling of the CC confirms that asylum seekers must be allowed to apply for visas or permits under the Immigration Act and if they subsequently meet the requirements of the Immigration Act, the visa or permit must be granted. Section 31(2)(c) of the Immigration Act further allows asylum seekers to apply to the Minister of Home Affairs for an exemption from any prescribed requirement for the issuance of a visa or permit and on this basis the blanket ban on all asylum seekers had to be set aside.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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