Judgment reserved in Concourt immigration case - SAPA

Judgment was reserved today after the Constitutional Court heard argument on a family of Kenyan origin's challenge to the loss of their permanent citizenship. The court was hearing the case of asking for leave to appeal a Pretoria High Court decision. Wycliffe Simiyu Koyabe and his family

Koyabe arrived in South Africa in 1994 and was granted a work permit, but he and the others were arrested as illegal immigrants in 2001 when it was found they had obtained illegal temporary identification documents. They left South Africa on the advice of a Department of Home Affairs official to "wipe the slate clean". He returned in 2003 and successfully applied for permanent residence in 2005. However, in 2007 the family discovered that their permanent residence was revoked and they were declared prohibited foreigners because of their earlier problem.

They asked the Pretoria High Court to set aside the decision and have argued that they had not been able to exhaust the internal remedies provided for under the Immigration Act, because they had not been told the reasons for the decision to declare them illegal immigrants.

The court found that they should instead approach the Department of Home Affairs to review the decision before asking for a judicial review. The Koyabe's lawyer Vas Soni said Section 34 of the Constitution covers the right to take a matter to court, but, according to section 7 of the Promotion of Administrative Justice Act, where there is a dispute over an administrative matter, internal remedies must first be exhausted.

He said they first learnt of the reasons for the decision in the responding papers submitted to court. He said Parliament would have intended the internal remedies to be sufficient when that Act was created. Arguing as a friend of the court for Lawyers for Human Rights, Steven Budlender submitted that it was a common tactic for the Department of Home Affairs to tell people to exhaust all internal remedies.

However, the State believes the Koyabes could have tried other remedies, besides applying to the court. They could have applied to have their prohibited status changed, for example. - Sapa