BREAKTHROUGH FOR ASYLUM SEEKERS IN SOUTH AFRICA

Asylum Seekers may now apply for an exemption (waiver letter) issued by Home Affairs to submit an application for a temporary residence visa in SA on the basis that the Asylum Seeker qualifies for such a visa in terms of the Immigration Act of 2002

CONSTITUTIONAL COURT OF SOUTH AFRICA

Tashriq Ahmed and Others v Minister of Home Affairs and Another


Case: CCT 273/17

Date of hearing: 15 May 2018

Date of judgment: 9 October 2018


JUDGMENT

On Tuesday, 9 October 2018, at 10h00, the Constitutional Court handed down judgment in the application for leave to appeal against an order of the Supreme Court of Appeal (SCA). The SCA overturned a decision of the High Court of South Africa, Western Cape Division, Cape Town (High Court) which declared the Immigration Directive 21 of 2015 (the Directive) issued by the Department of Home Affairs inconsistent with the Constitution, invalid and set it aside. In 2008 the Director-General of Home Affairs issued Circular 10 of 2008 (the Circular) which confirmed a court order to the effect that asylum seekers and refugees, in terms of the Refugees Act 130 of 1998, were allowed to apply for visas or permits under the Immigration Act 13 of 2002. The Circular was withdrawn in February 2016 when the Directive was issued.

The Constitutional Court held as follows:

  1. To the extent that Immigration Directive 21 of 2015, issued by the Director-General of the Department of Home Affairs on 3 February 2016, imposes a blanket ban on asylum seekers from applying for visas without provision for an exemption application under section 31(2)(c) of the Immigration Act 13 of 2002, it is declared inconsistent with the Immigration Act 13 of 2002 and invalid.
  2. To the extent that Immigration Directive 21 of 2015, issued by the Director-General of the Department of Home Affairs on 3 February 2016, prohibits asylum seekers from applying for permanent residence permits while inside the Republic of South Africa, it is declared inconsistent with regulation 23 of the Immigration Regulations of 2014 and invalid.

CLICK HERE FOR SUMMARY OF JUDGMENT



 
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