Permanent residence permits

20 Jan 2023

The applicants in Hoque and Others v Minister of Home Affairs and Another [2022] 4 All SA 129 (WCC) were Bangladeshi nationals seeking permanent residence in South Africa. The first applicant had obtained a general work permit. On expiry of that permit in 2019, he applied for a critical skills visa. In 2015, the first applicant had applied for a permanent residence permit in terms of section 26(a) of the Immigration Act 13 of 2002. The second applicant, applied for a permit in terms of section 26(b) on the basis that she was married to the first applicant, and two of the minor children, applied for permits in terms of section 26(c). The refusal of the applications gave rise to the litigation. The applicants sought –

• condonation of the delay in instituting their application;
• a declaration that the first applicant was not a prohibited person in terms of section 29(1) of the Immigration Act; and
• the review and setting aside of the respondents’ decisions in rejecting the applications for permanent residence permits.

Did the Minister act lawfully when he rejected the first applicant’s application for a permanent residence permit? The court found that the respondents had failed to place sufficient evidence before the court to justify the impugned decisions, and the review relief sought by the applicants had to succeed.

Section 8(1)(c)(ii)(aa) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) allows a court in proceedings for judicial review to grant any order that is just and equitable, including orders setting aside the administrative action and varying it, instead of remitting the matter for reconsideration by the original decision-maker. The court decided that this was a matter in which it should substitute a decision.

Section 7(1) of PAJA requires applications for judicial review to be brought within 180 days of the impugned decision. The court was satisfied that it would be in the interests of justice to extend the 180-day period prescribed to allow for the consideration of the review relief sought by the applicants. It was declared that the first applicant was not a prohibited person (section 29(1) of the Immigration Act), and the second respondent was directed to issue permanent residence permits to the applicants.

See also:

• Taking “refuge” in the Immigration Act – Asylum seekers and refugees
• Immigration reform and economic development – Are they two sides of the same coin?
• Proposed changes to the Employment Services Act are on the horizon
• Comprehensive guide now available to address expat tax

(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.)