[PRESS RELEASE] Constitutional Judgement on Directive 21
Today, the Constitutional Court handed down judgment in the matter of Ahmed and Others v the Minister of Home Affairs and Another, which concerns the constitutionality of a directive issued by the Department of Home Affairs (“DHA”), known as Directive 21. This directive places a total bar on holders of asylum seeker permits, in terms of section 22 of the Refugees Act, on applying for any temporary or permanent residence permits under the Immigration Act. Thus, the issue before the court in this matter was to determine the lawfulness and validity of Directive 21 of 2015, which purports to exclude all asylum seekers for applying for visas by stating:
“A holder of an asylum seeker permit who has not been certified as a Refugee may not apply for a temporary residence visa or permanent residence permit.”
In addition, the Court was also asked to determine the eligibility of the individual applicants, all holders of asylum seeker permits, for the respective permits they applied for under the Immigration Act.
Lawyers for Human Rights (“LHR”) intervened as amicus curiae in this matter, after being invited to do so by the Registrar, given LHR’s experience and knowledge in matters relating to refugee law. Specifically, LHR sought to assist the Court by making submissions in respect of the significant backlogs in the refugee status adjudication process, leading to the precarious position occupied by asylum seekers in this country. In addition, LHR also made submissions regarding specific instances of when an asylum seeker would seek the additional protection of a temporary residence permit under the Immigration – for instance, a student commencing with a four-year degree may seek the additional protection of a study visa, in case her application for asylum is rejected during the course of her studies. LHR also made submissions in respect of the onerous nature of the regulations to the Immigration Act, requiring that all applications for temporary residence permits be made from outside the country, as an asylum seeker cannot be expected to return to their country of origin simply to make an application for a visa, because this would be contrary to South Africa’s duties under non-refoulement.
The Constitutional Court, the highest court in the land, has today concluded that Directive 21 is invalid insofar as it purports to place an absolute bar on asylum seekers from applying for temporary or permanent residence permits. Whilst the Court has partially set aside Directive 21, it maintains that the requirement that applications for visas be made from outside the country is valid and further, that it is open to the individual applicants to apply for exemption from the Minister in terms of section 31(2)(c) of the Immigration Act.
This judgement has far-reaching implications for asylum seekers, like the applicants in this matter, as it allows them to seek an additional layer of protection and further regularize their stay in South Africa. In addition, asylum seekers will be better equipped and able to contribute to the economy, should they be granted the relevant work and critical skills visas. It is now imperative that this judgement is enforced.
Wayne Ncube, the head of LHR’s Strategic Litigation Programme, noted that, “This is an important judgement that provides a key access point to administrative justice for an extremely vulnerable part of our society. It is hoped that asylum seekers will now have access to an avenue for documentation under the Immigration Act, in such a way that does not force them to return to their countries of origin, where they risk facing persecution.”
For more information contact:
Carol Mohlala
Phone: 079 238 9826
E-mail: Carol [at] lhr [dot] org [dot] za
Website: www.lhr.org.za
Wayne Ncube
Phone: 011 339 1960
E-mail: jessical [at] lhr [dot] org [dot] za
Website: www.lhr.org.za