Brief Summary

Immigration Law — Permanent residence permit exemption — Review of decision — Applicant sought review of refusal to issue permanent residence permit exemption certificate under Section 31(2)(b) of the Immigration Act 13 of 2002 — Respondents failed to oppose application — Court found that the refusal was not justified as the applicant met the criteria for special circumstances — Decision of the respondents set aside, and they ordered to issue the exemption certificate and allow the applicant to reside in South Africa pending further processes.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an unopposed review application brought in the High Court of South Africa (Gauteng Division, Pretoria) to challenge an administrative decision made within the Department of Home Affairs. The applicant, Yaroslava Romashko, sought judicial review of the refusal (dated 31 March 2022) of her application for a permanent residence permit exemption certificate in terms of section 31(2)(b) of the Immigration Act 13 of 2002.

The respondents were the Director-General of the Department of Home Affairs (first respondent), the Minister of the Department of Home Affairs (second respondent), and the Yogie Tavern Director (third respondent). The judgment records that the application was properly served on all respondents, but none opposed the relief sought. The matter therefore proceeded on the unopposed motion roll.

The dispute arose from the Department’s refusal to grant the applicant permanent residence through the statutory exemption mechanism in section 31(2)(b), with the Department concluding that the applicant had not demonstrated the “special circumstances” required by the statute. The applicant contended that the refusal was reviewable under the principles of administrative justice (including the Promotion of Administrative Justice Act 3 of 2000 (PAJA)), and sought, primarily, the setting aside of the decision and either substitution (directing the issuing of the exemption certificate) or, in the alternative, remittal for reconsideration, together with interim protection against arrest, detention, or deportation pending reconsideration.

Material Facts

The applicant was married to a South African citizen, Jacobus Frederik Smit, on 22 October 2009 in terms of civil rites. On 24 June 2015, while her husband was still alive, she submitted an application for permanent residence under section 26(b) of the Immigration Act. The applicant’s husband later passed away on 13 November 2017.

On 25 May 2018, the applicant received the outcome of her section 26(b) permanent residence application, which had been refused. The judgment records that the refusal occurred after a substantial delay and after the death of the applicant’s spouse. The applicant was appointed executrix of her late husband’s estate on 7 August 2018 (the papers also refer to a letter of appointment issued by the Master).

In addition, the applicant was appointed as an interim administrator on 4 September 2017 in terms of section 60(4)(a) of the Mental Health Care Act 17 of 2002 (this appointment was treated by the applicant as part of her personal circumstances and character, and as relevant to whether she had established ties in South Africa).

Thereafter, the applicant applied to the Minister for permanent residence via the exemption route under section 31(2)(b). That application was refused on 31 March 2022. The written refusal stated, in essence, that the Minister could not find “special circumstances” justifying the granting of permanent residence through exemption. The refusal reasoned that the applicant’s reliance on the length of her residence, her marriage since 2009 to a South African citizen, inheritance she may have received, and the delay in finalising her earlier permanent residence application (resulting in an outcome only after her husband’s death) did not amount to special circumstances. The refusal further stated that what was expected was an explanation of how South Africa and its people would benefit from her continued residence, as well as compelling reasons why she could not return to her country of origin, particularly because no child was born of the marriage and she had no other family in South Africa. It also stated that the applicant did not meet requirements of being legally resident at the time of the 2015 application and that she maintained an illegal status for more than two years until her husband’s passing.

The applicant instituted the present review application on 12 May 2022. The judgment records service on the first respondent on 26 July 2022, on the second respondent on 25 July 2022, and on the third respondent on 26 July 2022. The respondents did not oppose, and the matter proceeded unopposed.

Where the judgment differentiated between disputed and undisputed aspects, it did so implicitly. The respondents’ refusal asserted illegality of status; the applicant contended she acted bona fide on advice from VFS-related agents that she could remain pending finalisation. The court’s reasoning treated the Department’s delay and the treatment of the applicant’s status as part of the context relevant to the review, without making detailed factual findings on contested evidentiary disputes beyond what appeared from the papers and the reasons given for refusal.

Legal Issues

The central legal questions before the court were whether the refusal of 31 March 2022 constituted reviewable administrative action, and whether that decision was liable to be set aside on review because it was unreasonable, or because it was influenced by irrelevant considerations and/or failed to consider relevant considerations, and/or lacked a rational connection to the reasons given.

A further legal issue concerned the appropriate remedy if the decision were found reviewable: whether the court should substitute its own decision (effectively directing that the exemption certificate be issued) or instead remit the matter to the Department for reconsideration in accordance with the law. This implicated the remedial framework under PAJA and the Constitutional Court’s guidance on substitution.

The dispute primarily concerned the application of legal standards to the facts of the applicant’s circumstances, including the proper interpretation and application of the statutory criterion of “special circumstances” under section 31(2)(b), and the administrative-law standards of legality, rationality, and reasonableness. It also involved an evaluative judgment about whether the reasons relied upon by the Minister were consistent with the statute and whether the decision fell within constitutionally permissible bounds.

Court’s Reasoning

The court located the matter within the framework of constitutional administrative justice, referring to section 33 of the Constitution, which guarantees that everyone has the right to administrative action that is lawful, reasonable, and procedurally fair, and that persons adversely affected have a right to written reasons. The court also referenced PAJA in the context of review grounds and the adequacy of reasons, and noted jurisprudence emphasising accountability and transparency in administrative decision-making.

In outlining applicable review principles, the court referred to authority summarising when factual error may be reviewable, particularly where a functionary fails to get the facts right in rendering a decision and the error concerns material facts meeting an objective threshold. It also relied on reasonableness review principles which require consideration of factors such as the nature of the decision, the expertise of the decision-maker, the reasons given, competing interests, and the impact on affected persons.

Turning to remedy, the court referred to the Constitutional Court’s approach to substitution. It noted that substitution is permissible only in circumstances where there is only one proper and inevitable outcome and where remittal would be a waste of time. The court further recognised that, in deciding between substitution and remittal, a court should consider factors such as administrator incompetence or bias and the effects of further delay.

Applying these principles, the court considered the Minister’s refusal letter and the manner in which the statutory scheme was applied. The court reasoned that the decision-making must occur “in terms of the Act” and criticised the approach reflected in the refusal. The court considered it significant that the applicant had intended to reside permanently in South Africa, as evidenced by her earlier permanent residence application made while her spouse was alive. The court also treated the Department’s delay in finalising the earlier permanent residence application as indicative of unreasonableness on the part of the respondents, particularly in light of the consequences that the delay had for the applicant’s position.

A specific feature of the court’s reasoning was its focus on whether the Minister’s refusal relied on considerations that were not grounded in the statutory framework. The court stated that, upon a perusal of the Immigration Act, it could not find support for reasoning based on the absence of children, and emphasised that the legislature’s intention in the permanent residence scheme is set out in the Act and should be applied accordingly. The court further highlighted the applicant’s personal circumstances, including that she had established ties in the country and had been appointed executrix of her late husband’s estate.

On the remedial question, the court expressly declined to substitute its own decision. It stated that there was no indication that the respondent was incompetent to deal with the matter and that it was not evident that the court could take the decision on the respondent’s behalf on the basis that there was only one proper and inevitable outcome. The court therefore concluded that the prudent course was to remit the matter back to the respondents so that the application could be properly reconsidered on the basis of what the law stipulates.

Finally, on costs, the court noted that an attorney-and-own-client costs scale was “no more” (in the sense that it would not grant that scale in the order before it) and amended the draft order accordingly. The resulting order awarded costs on the attorney and client scale.

Outcome and Relief

The court set aside the respondents’ decision dated 31 March 2022 refusing the applicant’s application for a permanent residence permit exemption certificate under section 31(2)(b) of the Immigration Act 13 of 2002 (reference PRE2556732).

The court ordered the respondents to review (reconsider) their decision and to notify the applicant of the reviewed decision within 10 days of service of the order.

Pending the review and any further internal and/or legal processes concerning the applicant’s status, the court ordered that the applicant be allowed to reside in South Africa and interdicted the respondents from taking steps that may result in her being arrested, detained, or deported.

The respondents were ordered to pay the costs of the application on an attorney and client scale.

Cases Cited

Airports Company South Africa v Tswelokgotso Trading Enterprises CC 2019 (1) SA 204 (GJ).

Koyabe and Others v Minister of Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327 (CC).

Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC).

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).

Director-General, Department of Home Affairs and Others v Link and Others (A324/18) [2019] ZAWCHC 138; [2019] 4 All SA 720 (WCC); 2020 (2) SA 192 (WCC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 33).

Immigration Act 13 of 2002 (sections 25(3), 25(4), 26(b), 27(f), 31(2)(b)).

Promotion of Administrative Justice Act 3 of 2000 (including section 5(2); and the remedial reference to section 8(1)(c)(ii)(aa) as relied upon in argument).

Mental Health Care Act 17 of 2002 (section 60(4)(a)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the refusal of the applicant’s section 31(2)(b) exemption application was reviewable and should be set aside because the respondents had failed to properly apply the law to the facts as contemplated by the statutory scheme. The court held further that substitution was not justified on the papers because it was not established that only one proper and inevitable outcome existed, and there was no finding of respondent incompetence warranting the court taking the decision itself. The matter was therefore remitted for reconsideration, with interim protection allowing the applicant to remain in South Africa and preventing arrest, detention, or deportation pending the outcome, and with costs awarded against the respondents on an attorney and client scale.

LEGAL PRINCIPLES

The judgment applied the principle that administrative decision-making affecting rights must comply with section 33 of the Constitution, requiring administrative action to be lawful, reasonable, and procedurally fair, and requiring that persons adversely affected be provided with written reasons.

It applied the principle that, on review, a court may interfere where an administrator’s decision is infected by a material error in relation to facts that are objectively verifiable and material to the outcome, and where the decision fails to meet the standards of rationality and reasonableness.

The judgment applied established reasonableness review considerations, including that the assessment of reasonableness may take account of the nature of the decision, the decision-maker’s expertise, the reasons provided, competing interests, and the impact on the lives and well-being of those affected.

On remedies, the judgment applied the principle that substitution is exceptional and is generally appropriate only where there is one proper and inevitable outcome and remittal would be futile or a waste of time, with further relevant considerations including administrator incompetence or bias and the impact of delay. In the absence of a basis to substitute, the proper remedy was remittal for reconsideration consistent with the governing statute.

Romashko v Director-General of The Department of Home Affairs and Others (25993/2022) [2022] ZAGPPHC 761 (9 October 2022)