About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2018
>>
[2018] ZACC 39
|
|
Ahmed and Others v Minister of Home Affairs and Another (CCT273/17) [2018] ZACC 39; 2018 (12) BCLR 1451 (CC); 2019 (1) SA 1 (CC) (9 October 2018)
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 273/17
In
the matter between:
TASHRIQ
AHMED
First
Applicant
ARIFA
MUSADDIK
FAHME
Second
Applicant
KUZIKESA
JULES VALERY
SWINDA
Third
Applicant
JABBAR
AHMED
Fourth
Applicant
and
MINISTER
OF HOME
AFFAIRS
First
Respondent
DIRECTOR-GENERAL
OF HOME AFFAIRS
Second
Respondent
and
PEOPLE
AGAINST SUFFERING, OPPRESSION
AND
POVERTY
First
Amicus Curiae
LAWYERS
FOR HUMAN
RIGHTS
S
econd
Amicus Curiae
DE
SAUDE ATTORNEYS
INC
Third
Amicus Curiae
Neutral
citation:
Ahmed and Others v
Minister of Home Affairs and Another
[2018]
ZACC 39
Coram:
Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J,
Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron
J
Judgment:
Theron J (unanimous)
Heard
on:
15 May 2018
Decided
on:
9 October 2018
Summary:
Immigration Directive 21 of 2015 —
validity of directive — imposes blanket ban on asylum seekers
applying for visas
under
Immigration Act 13 of 2002
—
inconsistent with
Immigration Act — invalid
Immigration
Directive 21 of 2015 — validity of directive — prohibits
asylum seekers from applying for permanent residence
permits —
inconsistent with
regulation 23
of Immigration Regulations of 2014 —
invalid
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
High Court of South Africa, Western Cape Division, Cape Town):
1.
Leave to appeal is
granted.
2.
The appeal is upheld
and the order of the Supreme Court of Appeal is set aside.
3.
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.
4.
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, 2014
published under Government Notice R413 in
Government
Gazette
37697 of 22 May 2014 and
invalid.
5.
There is no order as
to costs.
JUDGMENT
THERON
J (Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta
J, Khampepe J, Madlanga J, Petse AJ concurring):
Introduction
[1]
This is an application for leave to appeal
against a decision of the Supreme Court of Appeal.
This case concerns
the question whether asylum seekers,
including those whose applications for refugee status have been
refused, are eligible to apply
for other visas and immigration
permits in terms of the
Immigration Act.
>
[1]
The applicants also seek an order setting
aside a Department of Home Affairs (Department) directive,
Immigration Directive 21 of
2015 (Directive), which requires
Departmental functionaries to refuse all applications for temporary
and permanent residence visas
made by the holder of an asylum seeker
permit.
Background
[2]
The first applicant, Mr Tashriq Ahmed, is
an admitted attorney specialising in immigration law and the legal
representative of the
second to fourth applicants. He has
joined in the application in the interests of the general public and
his clients. Ms Arifa
Musaddik Fahme, Mr Kuzikesa Jules Valery
Swinda and Mr Jabbar Ahmed, the second to fourth applicants
respectively, are
all asylum seekers who have been “refused”
[2]
visas or permits under the
Immigration Act.
[3
]
The first respondent is the Minister of
Home Affairs (Minister). The second respondent is the
Director-General of the Department
who is responsible for the
administration and implementation of the
Immigration Act and
the
Refugees Act.
[3]
[4]
The first to third amici curiae are, respectively, People
Against Suffering, Oppression and Poverty (PASSOP); Lawyers for Human
Rights (LHR); and De Saude Attorneys Inc. The first
and second amici curiae are non governmental organisations
based
in Johannesburg and the third amicus curiae is a Cape Town-based law
firm specialising in South African immigration and citizenship
law.
[4]
[5]
This
matter originates from an order
of the then Western Cape High Court issued in 2003 in
Dabone v
Minister of Home Affairs
(
Dabone
order),
[5]
which ordered the Department to no longer require that an asylum
seeker cancel her asylum seeker permit in order to apply for a
permanent or temporary residence permit under the
Immigration Act or
that she must possess a valid passport in order to make such an
application.
[6]
[6]
In essence, the Circular, which was
included in the
Dabone
order,
provided that asylum seekers who were in possession of a temporary
asylum seeker permit
[7]
could apply for a temporary residence permit
contemplated in the
Immigration Act, as
well as permanent residence
permits. The Circular directed that all employees of the
Department accept applications for temporary
visas and permanent
residence permits from asylum seekers and refugees. In
addition, it confirmed that applicants did not
need to give up their
status as asylum seekers in order to make these applications and that
a valid passport would no longer be
a prerequisite.
[8]
[7]
The
Dabone
order was complied with by the
Department for just over a decade. In February 2016, the Department
issued the Directive
which is headed
“Withdrawal of Circular No. 10 of 2008 confirming the 11
November 2003
Dabone
Court
Order”. The Directive provided that:
“It is the considered view of the Department that no change of
condition or status should be premised on the provisions of
the
Immigration Act for
a holder of an asylum seeker permit whose claim
to asylum has not been formally recognised by SCRA [Standing
Committee for Refugee
Affairs].
Section 27(c) of the Refugees Act stipulates that a Refugee is
entitled to apply for an immigration permit after five years’
continuous residence in the Republic from the date on which he or she
was granted asylum, if the Standing Committee certifies that
he or
she will remain a refugee indefinitely.
The immigration permit referred to in the Refugees Act is the
permanent residence permit of
section 27(d)
of the
Immigration Act.
It
therefore follows that 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 view of the above provisions I wish to advise all immigration
officials that Departmental Circular No. 10 of 2008 has fallen
away
since the 26th of May 2014 and is hereby officially withdrawn.”
[8]
The Directive ends with:
“In view of the above provisions I wish to advise all
immigration officials that Departmental Circular No. 10 of 2008 has
fallen away since the 26th of May 2014 and is hereby officially
withdrawn.. All applications for change of status from asylum
seeker permit to temporary residence visa which are still pending in
the system should be processed as per this directive regardless
of
the date of application.”
[9]
The second applicant applied for a
visitor’s visa in terms of
section 11(1)(b)(iv)
[9]
of the
Immigration Act, read
with
regulation
11(4)(a)
,
[10]
which would allow her to remain in the country
with her husband and their children, while her husband is here under
a general work
permit. VFS Global, an entity acting as an agent
for the Department, refused to accept her application on the basis
that,
in terms of the Directive, it was unable to accept applications
from asylum seekers for temporary visas.
[10]
The third and fourth applicants each
applied for a critical skills visa in terms of
section 19(4)
[11]
of the
Immigration Act on
the basis that they
possess a skill
[12]
which falls under critical skills as provided in
the Regulations. Their applications were rejected on the ground
that their
asylum claims were subject to an appeal before the
Refugees Appeal Board.
[13]
They have both appealed against this rejection and
the appeal is pending.
In
the High Court
[11]
The applicants approached the High Court of
South Africa, Western Cape Division, Cape Town (High Court) for an
order declaring that
the Directive was invalid as it was inconsistent
with the Constitution and should be set aside. In addition, the
applicants
sought an order that the respondents consider (or
reconsider) the second to fourth applicants’ visa applications.
[12]
The High Court held that, viewed through
the prism of the Constitution, the
Immigration Act and
the Refugees
Act should be read together in a complementary fashion and not be
treated as separate and distinct legislative regimes.
The High
Court pointed to the fact that the
Immigration Act distinguishes
between “citizens” and “foreigners”. A
foreigner is defined as “an individual who is not a
citizen”.
[14]
The High Court reasoned that this provision
includes all categories of foreigners, including asylum seekers.
[15]
The High Court found that it was not
offensive to the legislative scheme to allow an asylum seeker to
apply for temporary residence
in terms of the
Immigration Act.
In
addition, the High Court held that there was nothing in either the
Immigration Act or
Refugees Act which prevented asylum seekers from
applying for temporary residence permits from within the country.
[16]
[13]
The High Court held that denying the second
applicant an opportunity to apply for a visitor’s permit in
order to remain with
her spouse and children “constitutes an
unjustifiable violation of her right to dignity as well as that of
her spouse”.
[17]
The High Court further held that it could find no
reason why the third and fourth applicants, and persons similarly
placed, should
be denied the right to apply for temporary work rights
if they meet the requirements for such a visa.
[18]
It held that this interpretation would further the
aims and objectives of the
Immigration Act.
[19
]
The High Court concluded that the second
respondent had acted irrationally, that the Directive was arbitrary,
and fell to be set
aside.
[20]
In
the Supreme Court of Appeal
[14]
Dissatisfied with the decision of the High
Court, the respondents approached the Supreme Court of Appeal.
The Supreme Court
of Appeal held that an application for a visa by a
foreigner “must be made abroad and not in South Africa.”
[21]
The Supreme Court of Appeal held that the
High Court’s conclusion was based on an erroneous
interpretation of the
Immigration Act and
that asylum seekers are
subject to the Refugees Act which is a separate regime to that of the
Immigration Act.
[22
]
In
this Court
[15]
In this Court the applicants submit that
the provisions of the
Immigration Act that
relate to temporary and
permanent residence permits refer only to “foreigners”
and do not expressly exclude asylum
seekers. The applicants
contend that the fact that
section 27(d)
of the
Immigration Act makes
express provision for refugees to apply for permanent residence five
years after their recognition as a refugee does not mean that
an
asylum seeker or a refugee may not be eligible for any other permit
in terms of the
Immigration Act. In
addition, they argue that
the Directive is unlawful as it is
ultra
vires
and unjustifiably limits the
right to dignity of asylum seekers with familial relations in the
country.
[16]
The respondents support the conclusion of
the Supreme Court of Appeal. The respondents submit that the
Directive is consistent
with the legislative and regulatory framework
of the Refugees Act and Immigration Act. They further contend
that even if
the Directive is invalid, the officials of the
Department, in any event, have no discretion to accept and consider
applications
made within the country.
[17]
The amici curiae each applied for
condonation for the late filing of their applications to be
admitted. Their explanations
were reasonable and all three
condonation applications must be granted.
[18]
The issues raised by the amici were not
fully canvassed by the parties and were of assistance to this Court.
It is therefore
in the interests of justice to admit them as
amici curiae.
[19]
In addition, LHR and De Saude Attorneys Inc
applied to adduce further evidence. At the hearing, LHR
abandoned its application
while De Saude Attorneys Inc neither
addressed nor pursued their application. In view of this it
would not be in the interests
of justice to admit the further
evidence.
Jurisdiction
and leave to appeal
[20]
This Court will grant leave to appeal where
the application raises a constitutional issue and where it is in the
interests of justice
to grant leave to appeal.
[23]
This matter raises various constitutional issues.
It involves the lawfulness of the Directive and whether it
contravenes the
applicants’ right to just administrative
action. It also concerns whether the Directive unjustifiably
infringes the
applicants’ right to dignity.
[24]
[21]
In addition, it raises questions about the
inter-relationship between refugee and immigration law. This
Court’s jurisdiction
is engaged.
[22]
The question whether asylum seekers and
refugees are entitled to apply for visas under the
Immigration Act is
of significance and a determination by this Court will impact on
numerous persons, not just the applicants. This Court, in
Union
of Refugee Women
,
[25]
recognised the vulnerability of refugees:
“Refugees are unquestionably a vulnerable group in our society
and their plight calls for compassion. As pointed out
by the
applicants, the fact that persons such as the applicants are refugees
is normally due to events over which they have no
control. They
have been forced to flee their homes as a result of persecution,
human rights violations and conflict. Very
often they, or those
close to them, have been victims of violence on the basis of very
personal attributes such as ethnicity or
religion. Added to
these experiences is the further trauma associated with displacement
to a foreign country.
The condition of being a refugee has thus been described as implying
‘a special vulnerability, since refugees are by definition
persons in flight from the threat of serious human rights
abuse’.”
[26]
[23]
Further, though not decisive, there are
prospects of success in this matter. It is in the interests of
justice to grant leave
to appeal.
Merits
The scheme of the Refugees Act
[24]
The Refugees Act distinguishes between
asylum seekers and refugees.
[27]
An asylum seeker is someone who has arrived in
South Africa and applied for asylum, that is, for recognition as a
refugee.
A refugee is someone who has been granted asylum.
The Refugees Act protects both groups but their rights vary
significantly.
[25]
Section 23
of the
Immigration Act
[28
]
and
regulation 22
of the Regulations provide that
the Director-General may issue an asylum transit visa to any person
who arrives at a South African
port of entry and claims to be an
asylum seeker. The visa is valid for five days and it allows
the asylum seeker only to
travel to the nearest Refugee Reception
Office in order to apply for asylum.
[26]
Once asylum seekers have entered South
Africa, they must apply for asylum at a Refugee Reception
Office.
[29]
The Refugee Reception Officer must issue an asylum
seeker permit to the applicant pending the outcome of her application
for asylum.
[30]
If the asylum seeker’s transit visa
has not already expired, it is in any event rendered “null and
void” by
section 22(2)
when an asylum seeker’s permit is
issued to her.
[27]
The asylum seeker’s application for
asylum is determined in terms of
section 24(3).
If the
application for asylum succeeds, the applicant becomes entitled to
all the rights of refugees provided for in
sections 27
to
34
.
These include the rights to live and work in South Africa,
[31]
and to apply for a permanent residence permit.
[32]
Visa applications
[28]
The
Immigration Act distinguishes
between
two types of visas, namely, temporary residence permits, on the one
hand,
[33]
and permanent residence permits, on the other.
[34]
Section 10(2)
entitles any foreigner to
apply for a temporary residence permit visa. This includes
a
study visa
(section 13)
; a visa permitting the holder to establish a
business
(section 15)
; a visa to stay with a relative
(section 18)
; a
critical skills visa
(section 19(4)
; a retired person visa
(section
20)
; and a spousal visa
(section 11(6).
Section
10(2)
stipulates that all visa applications must be made “in
the prescribed manner”.
[29]
Regulation 9(1)
and (2) prescribe the
manner in which most visa applications must be made. In terms
of
regulation 9(2)
, visa applications must be made at a foreign
mission of the Republic (foreign mission). It reads:
“
Any applicant for any visa referred to in
sub-regulation (1) must submit his or her application in person to –
(a) any foreign mission of the Republic where the applicant is
ordinarily resident or holds citizenship; or
(b)
any mission of the Republic that may from time to time be designated
by the Director-General to receive applications in respect
of any
country in which a mission of the Republic has not been established.”
[30]
Section 10(6)(a)
of the
Immigration Act
allows
certain foreigners who are in South Africa to apply for a
change of status:
“Subject to this Act, a foreigner, other than the holder of a
visitor’s or medical treatment visa, may apply to the
Director-General in the prescribed manner to change his or her status
or terms and conditions attached to his or her visa, or both
such
status and terms and conditions, as the case may be, while in the
Republic.”
[31]
Section 1(1)
defines “status”
as “the status of the person as determined by the relevant visa
or permanent residence permit
granted to a person in terms of this
Act”. Additionally, the
section 1(1)
defines a “visa”
as “the authority to temporarily sojourn in the country for a
purpose specified in the
Immigration Act&rdquo
;.
[32]
Regulation 9(5)
elaborates on these
provisions:
“A foreigner who is in the Republic and applies for a change of
status or terms and conditions relating to his or her visa
shall –
(a)
submit his or her application, on Form 9 illustrated in Annexure A,
not less than 60 days prior to the expiry date of his or
her visa;
and
(b)
provide proof that he or she has been admitted lawfully into the
Republic,
Provided that no person holding a visitor’s or medical
treatment visa may apply for a change of status to his or her visa
while in the Republic, unless exceptional circumstances set out in
sub-regulation (9) exist.”
[33]
Section 10(6)(a)
and
regulation 9(5)
are an
exception to the general provision that visa applications must be
made at a foreign mission. They also make it clear,
however,
that the exception only applies to the holders of certain categories
of visas issued in terms of the
Immigration Act. The
exceptions
do not apply to asylum seekers who are in the country on asylum
seeker permits issued in terms of the Refugees Act.
[34]
Upon arrival at a South African port of
entry, asylum seekers are given an asylum transit visa for five days
to allow them to apply
for asylum at the nearest Refugee Reception
Office. This is in terms of the
Immigration Act.
Thereafter
, they become subject to the Refugees Act. Section
22(2) of the Refugees Act puts this beyond doubt. It says that,
upon
the issue of an asylum seeker permit to an applicant–
“any permit issued to the applicant in terms of the [the
Immigration Act], becomes
null and void, and must forthwith be
returned to the Director-General for cancellation.”
[35]
The second to fourth applicants’
applications for a visitor visa in terms of
section 11
and work
visas in terms of
section 19
of the
Immigration Act are
governed by
regulations 9(1) and (2) of the Regulations. Read together,
these regulations make it clear that the second to
fourth applicants
could not lawfully apply for visitor’s and work visas whilst in
South Africa. Applications for visas
of that kind may only be
made at a foreign mission, as was held by the Supreme Court of
Appeal.
[36]
The applicants have not attacked the
constitutional validity of the legislation or its application to
asylum seekers.
Nature
of the Directive
[37]
The applicants contend that there are two
broad reasons why the Directive is unlawful. The first is that
it contravenes the
Immigration Act and
is
ultra
vires
. The second is that it
unjustifiably limits the applicants’ right to dignity.
[38]
If the Directive overrides, amends or
conflicts with the provisions and/or scheme of the
Immigration Act,
then
it is unlawful.
[35]
Similarly, the Directive may not be in
conflict or inconsistent with the Constitution. The making of a
directive is the exercise
of public power, and all public power must
be exercised lawfully.
[36]
The Director-General of the Department can
only make directives that fall within the four corners of the
empowering legislation
(in this case, the
Immigration Act). For
the Director-General to issue a directive that contradicts or extends
beyond the powers given to him by the
Immigration Act would
be to act
without legal authority and violate the rule of law.
[37]
Can the Directive be set aside?
[39]
The Supreme Court of Appeal did not
consider the validity of the Directive. Rather, it looked to
the
Immigration Act and
the Regulations to determine whether asylum
seekers, in the position of the second to fourth applicants, were
entitled to apply
for a visa or permit. It concluded that
asylum seekers are subject to the requirement that applications for
visas or permits
must be made from outside the borders of the
country, and as the second to fourth applicants did not apply for
exemption from this
requirement, they were not entitled to make such
an application once inside the country. It noted that
applications for exemption
from this requirement were possible under
section 31(2)(c)
of the
Immigration Act.
[40
]
This interpretation of the Act and the
Regulations cannot be faulted. The only remaining issue is
whether it is necessary
for this Court to go any further. Can
this Court set aside the Directive? To answer this
question regard must
be had to the nature of a directive. The
applicants argue that the Directive is binding on all employees of
the Department
and thus they are obliged to adhere to and act in
accordance with it. The respondents contend that the Directive
is merely
a statement of policy which has no force in law and which
cannot confer any rights nor deprive a person of rights.
[41]
The nature and status of a directive is
unclear. A directive is an official policy document, which
guides government departments
on how to apply legislation. According
to Baxter, directives belong to a “body of rules which are of
great practical
importance” and which constitute “instructions
issued without clear statutory authority to guide the conduct of
officials
in the exercise of their powers.”
[38]
Baxter refers to departmental circulars and
directives as “administrative quasi-legislation” which
are neither legislation
nor subordinate legislation.
[39]
This does not necessarily mean that a directive is
unenforceable or that it has no legal status.
[40]
Where it appears that an Act has anticipated the
creation of a directive, a court will be more willing to find that it
has legal
authority and is enforceable. The fact that
directives are not promulgated and there is uncertainty as to their
legal status,
may lead to a situation where an official or body
relies on a directive that is not aligned to applicable law.
[42]
The nature of policy directives differ.
They may be statutorily required, in which case their lawfulness is
assessed against
the empowering legislation seen through a
constitutional lens.
[41]
In other cases, the application of the statutory
policy in individual instances may be challenged on the grounds of
the infringement
of certain fundamental rights, like the right to
equality. In
Barnard
,
this Court held that there was no discrimination against the
applicant because the policy was flexible and the functionary’s
exercise of discretion in accordance with that flexibility could not
be faulted.
[42]
Lastly, the policy may not be expressly required
by legislation, but be an internal document that regulates the
implementation and
application of statutory powers granted to
functionaries.
[43]
[43]
The Directive here appears to fall into the
third category. The difficulty then is whether its contents may
be challenged
directly in the same way as legislation by way of
legality review, or whether only its application in individualised
instances
may be challenged under administrative review. However
the two are, at times, closely interlinked.
[44]
The Directive was issued by department
officials and in practice, employees of the Department, and its agent
VFS Global, believed
that they were bound by the terms of the
Directive. Standing alone, the Directive could be said to
constitute an exercise
of public power which is reviewable, be it
under the Promotion of Administrative Justice Act
[44]
(PAJA) or the principle of legality. The
application of its terms by officials would merely be an extension of
this conduct.
If that conduct – the issuing of the
Directive and its subsequent application by officials – was
based on a material
error of law the result under legality or
administrative review would be the same: it would be invalid and
unlawful.
[45]
In my view, it is not necessary to make a
pronouncement on the status of the Directive or directives falling
into the third category.
Similarly, it is not necessary for me
to make a pronouncement on whether the review should take place under
PAJA or the principle
of legality as the distinction was never raised
by the parties.
[45]
That the Directive is treated as binding by the
people tasked to implement it is sufficient for this Court to make a
determination
on whether the Directive is
ultra
vires
and thus invalid.
Ultra
vires
[46]
The overarching purpose of the Directive is
to withdraw the Circular. However, the Directive goes further
than a mere withdrawal
in that it, in addition, provides:
“
[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.”
[47]
Does this impose a blanket ban on asylum
seekers from applying for temporary or permanent residence visas, and
if yes, is this permissible?
The Directive reads:
“It is the considered view of the Department that no change of
condition or status should be premised on the provisions of
the
Immigration Act for
a holder of an asylum seeker permit whose claim
to asylum has not been formally recognised by SCRA.”
[48]
The Directive goes on to refer to a
dispensation in terms of which refugees may apply for an immigration
permit under
section 27(d)
[46]
of the
Immigration Act, read
with section 27(c) of
the Refugees Act. On a plain reading of the Directive it is
clear that the only exception provided
for in the
Immigration Act is
for refugees in terms of
section 27(d).
It necessarily follows
that asylum seekers, who have not been certified as refugees, are not
entitled to apply for visas
or permits under the
Immigration Act.
The
Directive imposes a blanket ban on asylum seekers applying
for temporary or permanent residence visas under the
Immigration Act.
[49
]
The question is whether this is
permissible.
[50]
There is nothing in either the
Immigration
Act or
Refugees Act to support the Directive’s reasoning that
the process available in section 27(d) renders all other pathways to
immigration unavailable to an asylum seeker to obtain a permanent
residence permit. The immediate difficulty is that the
permit
referred to in section 27(d) is only available to a successful asylum
seeker who has been granted asylum status. This
interpretation
of the Acts would deprive unsuccessful asylum seekers of any pathway
to lawful presence in South Africa once their
application for asylum
is rejected. Such an interpretation is inconsistent with the
provisions of the
Immigration Act which
provide that all non-citizens
may apply for visas.
[51]
To the extent that the Directive imposes a
blanket prohibition on asylum seekers applying for permits under the
Immigration Act, it
is
ultra vires
.
However, it does not follow that the requirements imposed on these
applications by the
Immigration Act and
the Directive are
automatically invalid as well.
Permanent residence permits
[52]
The second applicant is a married woman
with children. Her husband and children reside in South
Africa. The Directive
prevents her, and similarly placed asylum
seekers, from applying for a permanent residence visa, which would
afford their familial
relations greater protection. Instead,
they are expected to remain in the country with their families on an
asylum transit
visa issued in terms of
regulation 22.
[53]
On the interpretation of the Directive
contended for by the respondents, in order to apply for a permanent
residence permit, asylum
seekers would have to return to their
countries of origin, likely leaving their families in South Africa.
This is not a requirement
under the Regulations. Unlike
temporary visas, there is no requirement in regulation 23 that
applications for permanent residence
permits must be made at a
foreign mission or outside the country.
[47]
Consequently, the Directive has the effect of
prohibiting an application which would otherwise be permitted under
the Regulations.
The question is whether the Directive can
override the Regulations.
[54]
A directive which has not been officially
published, for example in the
Government
Gazette
, or made accessible to the
public and merely issued by the Director-General of the Department to
all immigration officials as an
operational guide, can hardly be
suggested to be a law or carry sufficient weight so as to override
the Regulations. Thus,
to require that the second applicant
leave the country in order to apply for a visa when there is no
requirement under law to this
effect, would, in these circumstances,
be unfair and effectively unlawful.
[55]
To the extent that the Directive prevents
the second applicant, and similarly placed asylum seekers, from
applying for permanent
residence permits, it is
ultra
vires
and, therefore,
unlawful.
Temporary residence visas
[56]
The third and fourth applicants are not in
the same situation as the second applicant. This is not only by
virtue of the fact
that their familial relationships are not directly
impacted by the Directive but also due to the type of visa they have
applied
for. The regulatory requirements for temporary
residence visas – which have not been challenged in this matter
–
are different to those for permanent residence permits.
[57]
Section 10(1)
[48]
provides that a foreigner not in possession of a
permanent residence permit may only enter and sojourn in the country
if they are
in possession of a temporary residence visa. Section
10(2)
[49]
describes the various temporary residence visas
which may be issued. An application must be made in person and
in the prescribed
manner.
[58]
The Directive, in so far as it relates to
temporary residence permits, is not constitutionally invalid. The
Refugees Act provides
a mechanism for asylum seekers to obtain
immigration permits in the country. The process for asylum
seekers is distinct from
foreigners who enter the country on a valid
visa.
[50]
This distinction is not unconstitutional and
is based on a rational distinction between foreigners who enter the
country having
acquired a valid visa prior to entry and those who
arrive at a South African port of entry without having gone
through this
or a similar process. Further, the distinction is
based on the regulatory requirements not applicable to those applying
for
permanent residence permits.
[59]
This Court is aware of the challenges in
the refugee system. It is cognisant of the fact that requiring
an asylum seeker to
return to their countries of origin, in order to
apply, would, in all likelihood, require that the asylum seeker give
up their
asylum seeker permit.
[51]
In addition, this Court is mindful of the fact
that many asylum seekers may not be in the economic position to
enable them to travel
to their countries of origin. However, it
is not for this Court to unilaterally make a provision, which
differentiates asylum
seekers from other applicants under the
Immigration Act, by
directing that the Department receive these
applications from asylum seekers from within the borders of the
country.
[60]
Asylum seekers must be allowed to apply for
visas or permits under the
Immigration Act, and
if they meet the
requirements of that Act, they must be granted the visa or permit.
Section 31(2)(c)
of the
Immigration Act provides
that an applicant
may apply to the Minister for an exemption from any prescribed
requirement for the issuance of a visa or permit.
[52]
It was accepted by the parties that there is no
reason why the second to fourth applicants, and persons similarly
placed, may not
apply for an exemption and request that the Minister
waive the requirement that an application for a visa be made from
outside
the borders of the country.
[61]
Asylum seekers are often not in possession
of valid passports or identity documents and not in the position to
readily obtain their
documents. With this, and the
Dabone
order in mind, the Department circulated the
Circular to its employees and instructed them to accept and consider
applications for
visas or permits made by asylum seekers not in
possession of valid passports. The purpose of the Circular was
to ameliorate
the precarious position of asylum seekers and to afford
them the opportunity to apply for visas or permits in terms of the
Immigration Act without
a valid passport. It must be stressed
that no administrative hurdles, relating to the possession of
passports and the like,
may be introduced by the Department in order
to disallow or discourage these kinds of applications.
Remedy
[62]
It follows that the Directive must be set
aside in part. The consequence of this is that the general
regime as envisaged by
the Circular, the
Immigration Act and
the
Regulations remain in force. This ultimately means that there
is nothing preventing an asylum seeker from applying for
a visa or
permit under the
Immigration Act without
a valid passport.
[63]
It does not mean that an exception has been
created in terms of which asylum seekers may apply for temporary
residence visas whilst
within the borders of the country. This
is clear from the terms of the
Dabone
order and the Circular. What the
Dabone
order
and the Circular provide is that asylum seekers may apply for a visa
or permit under the
Immigration Act without
a valid passport. It
does not state that such an application may be made from within the
borders of the country. It
does, however, provide that asylum
seekers and refugees are not required to give up their status when
applying for a permanent
residence permit. This was not in
dispute before us.
[64]
The applicants submit that the order of the
High Court, to the effect that the respondents reconsider the
applications, is correct.
It was argued by PASSOP that such
reconsideration should be stayed pending the second to fourth
applicants being given a reasonable
opportunity to apply for
exemption in terms of
section 31(2)(c)
of the
Immigration Act and
until PASSOP’s intended constitutional challenge to
regulation
9(2)
has been heard. LHR suggests that an appropriate remedy
would be to order that the Director-General of the Department
reconsider
the applications, alternatively, that the second to fourth
applicants apply for exemption.
[65]
It is open to the second to fourth
applicants, in terms of
section 31(2)(c)
, to apply for exemption from
the requirements of
regulation 9
in order to allow them to
apply for a temporary residence visa from within the country. Those
applications must be considered
by the Minister. It is not for
this Court to direct the future conduct of the parties. Given
that the second to fourth
applicants would first have to apply for
exemption, and the Minister could grant such exemption applications,
there is no need
to grant PASSOP’s stay of consideration of the
applications pending its intended litigation in respect of
regulation 9(2).
In addition, the second applicant may now
apply for a permanent residence permit.
Costs
[66]
The applicants and the respondents were
both partially successful. In any event, the respondents are
not pursuing a costs
order. It is just and equitable that there
be no order as to costs.
Order
[67]
The following order is made:
1.
Leave to appeal is
granted.
2.
The appeal is upheld
and the order of the Supreme Court of Appeal is set aside.
3.
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.
4.
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, 2014
published under Government Notice R413 in
Government
Gazette
37697 of 22 May 2014 and
invalid.
5.
There is no order as
to costs.
For
the Applicants: A Katz SC, A Brink and Y Ntloko instructed by Kassel
Sklaar Cohen and Co.
For
the Respondents: W Trengove SC, K Pillay and A Nacerodien instructed
by the State Attorney, Cape Town.
For
the First Amicus Curiae: T Ngcukaitobi and E Webber instructed by the
Legal Resources Centre.
For
the Second Amicus Curiae: C McConnachie and C Tabata instructed by
Lawyers for Human Rights.
For
the Third Amicus Curiae: D Simonsz instructed by De Saude Attorneys
Incorporated.
[1]
13 of 2002.
[2]
“Refused” is used in the broad sense in that the
application of the second applicant was not accepted for processing
by the Department. See [9].
[3]
130 of 1998.
[4]
Another group, Forum of Immigration Practitioners
South Africa, applied to be admitted as amicus curiae.
However, their
application was not sent in the form prescribed by
this Court’s Rules and their application is refused.
[5]
Dabone v Minister of Home Affairs
, order of the High Court of
South Africa, Western Cape High Court, Case No 7526/03 (11 November
2003).
[6]
The
Dabone
order provides:
“2. [A]sylum seekers in possession of a permit issued in terms
of section 22 of the Refugees Act, 1998 (Act No. 130 of
1998)
(‘asylum seeker permit holders’) and refugees can apply
for one of the temporary residence permits contemplated
in the
Immigration Act, 2002 (Act No. 13 of 2002) (‘the
Immigration
Act&rsquo
;), as well as permanent residence in terms of
sections 36
or
27
of the
Immigration Act.
3. When
applying for permanent residence in terms
of
section 26
or
27
of the
Immigration Act, asylum
seeker permit
holders are no longer required to cancel their asylum seeker
permits.
4. When applying for permanent residence in terms
of
section 213
or
27
of the
Immigration Act, refugees
are no longer
required to give up their refugee status.”
[7]
Issued in terms of
section 22
of the
Refugees Act
above
n 3 which provides that:
“(1) The Refugee Reception Officer must, pending the outcome
of an application in terms of
section 21(1)
, issue to the applicant
an asylum seeker permit in the prescribed form allowing the
applicant to sojourn in the Republic temporarily,
subject to any
conditions, determined by the Standing Committee, which are not in
conflict with the Constitution or international
law and are endorsed
by the Refugee Reception Officer on the permit.”
[8]
Following the
Dabone
order,
the Department issued a circular, Circular 10. of 2008 (Circular),
which adopted the wording of the order, and read:
“
Department
Circular
No 10 of 2008 confirming the 11 November 2003 Dabone Court Order
WITHDRAWAL OF PASSPORT CONTROL
INSTRUCTION NO. 29 OF 2004
1.
Passport
Control Instruction No 29 of 2004 is hereby withdrawn.
2.
In terms of the Court
Order of the High Court of South Africa (Cape Provincial Division)
in the matter of Dabone and Others v
the Minister of Home Affairs
and Another, case no. 7526/03, asylum seekers in possession of a
permit issued in terms of section
22 of the Refugees Act, 1988 (Act
No. 130 of 199) (‘asylum seeker permit holders’) and
refugees can apply for one
of the temporary residence permits
contemplated in the Immigration Act, 2002 (Act No. 13 of 2002) (‘the
Im
migration Act’), as
well as permanent residence in terms of
section 26
or
27
of the
Immigration Act.
3.
When
applying for permanent
residence in terms of
section 26
or
27
of the
Immigration Act,
asylum
seeker permit holders are no longer required to cancel their
asylum seeker permits. When applying for permanent residence in
terms of
section 213
or
27
of the
Immigration Act, refugees
are no longer required to give up their refugee status.
4.
Possession of a valid passport
is no longer a prerequisite for processing applications by asylum
seekers in possession of asylum
seeker permits or refugees for: (a)
a temporary residence permit; or (b) an amendment to a temporary
residence permit held by
an asylum seeker or refugee.
5.
Possession of a valid passport
is no longer a prerequisite for the issuance of (a) temporary or
permanent residence permits, as
the case may be; or (b) an amendment
to a temporary residence permit held by an asylum seeker or refugee,
to asylum seeker permit
holders; or refugees.”
6.
[9]
This section is headed “Visitor’s
visa” and provides:
“
(1) A visitor’s visa may be issued
for any purpose other than those provided for in
sections 13
to
24
,
and subject to subsection (2), by the Director-General in respect of
a foreigner who complies with
section 10A
and provides the financial
or other guarantees prescribed in respect of his or her departure:
Provided that such visa–
…
(b) may be issued by the Director-General upon application for any
period which may not exceed three years to a foreigner who
has
satisfied the Director-General that he or she controls sufficient
available financial resources, which may be prescribed,
and is
engaged in the Republic in–
…
(iv) any other prescribed activity.”
[10]
Immigration Regulations, 2014 published under
Government Notice R413 in
GG
37697 of 22 May 2014 (Regulations).
Regulation 11(4)(a) is also headed “Visitor’s visa”
and provides that:
“
An activity contemplated in section
11(1)(b)(iv) of the Act shall be work conducted for a foreign
employer pursuant to a contract
which partially requires conducting
of certain activities in the Republic and relates–
(a)
to the spouse or dependent child of the
holder of a visa issued in terms of section 11.”
[11]
Section 19 is headed “Work visa” and
subsection 4 provides:
“Subject to any prescribed requirements, a critical skills
work visa may be issued by the Director-General to an individual
possessing such skills or qualifications determined to be critical
for the Republic from time to time by the Minister by notice
in the
Gazette and to those members of his or her immediate family
determined by the Director-General under the circumstances
or as may
be prescribed.”
[12]
The third applicant is a
n information technology
specialist and the fourth applicant is a sheep shearer.
[13]
The rejections were on the following basis:
“
The applicant cannot be granted a
temporary residence visa until their asylum application has been
finalized and their asylum
claims have been proven to be true as
currently the application has been referred to [the Refugees Appeal
Board] as the asylum
claims were found to be unfounded and thereby
rejected. The applicant has been granted an opportunity to
exhaust his or
her rights of appeal and
sec 26
of the
Refugees Act
no 130, 1998
states that the appeal board may after hearing an
appeal confirm, set aside or substitute any decision taken by a
refugee status
determination officer, as an adjudicator in
permitting a decision to grant trv [temporary residence visa] would
not be correct/premature
as the applicant’s asylum status has
yet to be finalized (which could result in confirmation, setting
aside or substitution
of the current rejection), such decision will
then provide direction in the processing of a trv.”
[14]
Section 1
of the
Immigration Act.
[15
]
Ahmed v Minister of Home Affairs
[2016] ZAWCHC 123
;
2017 (2)
SA 417
(WCC) (
High Court judgment) at paras 41
and 45.
[16]
Id at paras 45 and 53.
[17]
Id at para 63.
[18]
Id at para 64.
[19]
Id.
[20]
Id
at paras 68-70.
[21]
Minister of Home Affairs v Ahmed
[2017] ZASCA 123
;
2017 (6) SA 554
(SCA) (Supreme
Court of Appeal judgment) at para 10.
[22]
Id at para 13.
[23]
Section 167(6)(b) of the Constitution; Rule 19(2)
of the Constitutional Court Rules;
Everfresh Market
Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
[2011] ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) at paras 48-9.
[24]
See
Saidi v Minister of Home Affairs
[2018] ZACC 9
;
2018 (4)
SA 333
(CC);
2018 (7) BCLR 856
(CC) at paras 9 and 40.
[25]
Union of Refugee Women v Director, Private Security Industry
Regulatory Authority
[2006] ZACC 23; 2007 (4) SA 395 (CC); 2007
(4) BCLR 339 (CC).
[26]
Id at paras 28-9.
[27]
Section 1(1).
[28]
Section 23 reads:
“(1) The Director-General may, subject to the prescribed
procedure under which an asylum transit visa may be granted, issue
an asylum transit visa to a person who at a port of entry claims to
be an asylum seeker, valid for a period of five days only,
to travel
to the nearest Refugee Reception Office in order to apply for
asylum.
(2) Despite anything contained in any other law, when the visa
contemplated in subsection (1) expires before the holder reports
in
person at a Refugee Reception Office in order to apply for asylum in
terms of section 21 of the Refugees Act, 1998 (Act No.
130 of 1998),
the holder of that visa shall become an illegal foreigner and be
dealt with in accordance with this Act.”
[29]
Section 21 of the Refugees Act reads:
“(1) An application for asylum must be made in person in
accordance with the prescribed procedures to a Refugee Reception
Officer at any Refugee Reception Office.
(2) The Refugee Reception Officer concerned—
(a) must accept the application form from the applicant;
(b) must see to it that the application form is properly completed,
and, where necessary, must assist the applicant in this regard;
(c) may conduct such enquiry as he or she deems necessary in order
to verify the information furnished in the application;
and
(d) must submit any application received by him or her, together
with any information relating to the applicant which he or she
may
have obtained, to a Refugee Status Determination Officer, to deal
with it in terms of section 24.”
[30]
Section 22
of the
Refugees Act.
[31]
Section 27(b)
and (f) of the
Refugees Act.
[32
]
Section 27(c)
of the
Refugees Act.
[33
]
Sections 10
-
4
of the
Immigration Act.
[34
]
Sections 25
-
8
of the
Immigration Act.
[35
]
Akani Garden Route (Pty) Ltd v Pinnacle Point
Casino (Pty) Ltd
[2001] ZASCA 59
;
2001
(4) SA 501
(SCA) at para 7.
[36]
Pharmaceutical Manufacturers Association of South Africa: In re
Ex Parte President of the Republic of South Africa
[2000] ZACC
1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 79;
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR
1458
(CC) at para 56;
[37]
It is trite that the rule of law is a founding
value of South Africa’s constitutional democracy. See
section 1(c)
of the Constitution.
[38]
Baxter
Administrative
Law
3ed (Juta & Co Ltd, Cape Town
1991) at 200.
[39]
Id at 202.
[40]
Id at 201.
[41]
Compare
Minister of Constitutional Development v South African
Restructuring and Insolvency Practitioners Association
[2018]
ZACC 20; 2018 (9) BCLR 1099 (CC).
[42]
South African Police Service v Solidarity obo Barnard
[2014]
ZACC 23
;
2014 (6) SA 123
(CC);
2014 (10) BCLR 1195
(CC) (
Barnard
).
[43]
See
Dawnlaan
Beleggings (Edms) Bpk v Johannesburg Stock Exchange
1983
(3) SA 344
(W) at 365C-G where the rules of the JSE were found
binding because they were contemplated in section 10(1)(c) of the
Stock Exchange
Control Act 7 of 1947.
This
Court dealt with the status of a directive in the context of
provincial powers being amended in the
Constitution in
Certification of the Amended Text of the Constitution of the
Republic of South Africa, 1996
[1996] ZACC 24
;
1997 (2) SA 97
(CC);
1997 (1) BCLR 1
(CC) at para 120:
“The issuing of a directive in terms AT 100(1)(a) has no
consequences in itself; it only has relevance as part of
a
process which requires a directive to be issued before the
intervention sanctioned by AT 100(1)(b) takes place. If
intervention in terms of AT 100(1)(b) occurs, the requirements of AT
101(2) have to be complied with. These successive steps constitute
the process referred to in AT 100(3) which may have to be regulated
by legislation.”
For example, the
North West Roads Bill and North West Roads Agency Bill published for
comment in PG 6528 of 12 September 2008
dealt with the enforcement
of directives. Conversely, section 82 of the Constitution of
the Western Cape, 1997 deals specifically
with the legal status of
certain directives and reads: “[t]he directive principles of
provincial policy contained in this
Chapter are not legally
enforceable, but guide the Western Cape government in making and
applying laws.”
See
Harmony Gold Mining Company Ltd v Regional Director: Free State
Department of Water Affairs
[2013] ZASCA 206
;
2014 (3) SA 149
(SCA) where the Court considered whether the Minister’s
directives under the
National Water Act 36 of 1998
were enforceable
against a landowner who ceased to be a landholder. The Court
stated:
“The wording of subsection (3) makes it plain that the
Legislature intended to vest the Minister with wide discretionary
powers and to leave it to him or her to determine what measures a
defaulting landholder must take and for how long it must continue
to
do so. I find nothing in the wording of subsection (3) or in
the other provisions of
section 19
which warrants the conclusion
that the Minister's powers under subsection (3) are intended to be
limited. The Minister's
powers under subsections (4) to (8)
are also triggered by a landholder's default (in this instance its
failure to comply fully
with the Minister's directive issued under
subsection (3)), but the Minister's powers under subsections (4) to
(8) are much more
extensive”
In
Investec
Employee Benefits Ltd v Marais
[2012] ZASCA 99
; 2012 JDR 0913
(SCA) at para 5, the purpose of tax directives issued by SARS were
confirmed as a directive that “sets out
the amount of tax to
be deducted from the benefit payable to the beneficiary and must be
obtained and complied with before any
payment can be made.”
[44]
3 of 2000.
[45]
Cape Town City v Aurecon SA (Pty) Ltd
[2017] ZACC 5
;
2017 (4)
SA 223
(CC);
2017 (6) BCLR 730
(CC) (
Aurecon
) at para 36.
[46]
Section 27(d)
of the
Immigration Act provides
:
“The Director-General may, subject to any prescribed
requirements, issue a permanent residence permit to a foreigner of
good and sound character who is a refugee referred to in section
27(c) of the Refugees Act, 1998 (Act No. 13 of 2002), subject
to any
prescribed requirement.”
Section 27(c)
of
the
Refugees Act provides
:
“A refugee is entitled to apply for an immigration permit in
terms of the Aliens Control Act, 1991, after five years’
continuous residence in the Republic from the date on which he or
she was granted asylum, if the Standing Committee certifies
that he
or she will remain a refugee indefinitely.”
[47]
Regulation 23(3) makes provision for applications in a foreign
country but unlike regulation 9, it does not require that all
applications be made outside the country. Without pronouncing
on the constitutionality of regulation 9, it is clear that
the
requirements for a permanent residence permit are different to those
outlined in regulation 9 and thus there is no legal
basis to impose
those same requirements by way of a directive. Regulation 23(4)
provides that:
“An application made in a foreign country shall be submitted
to–
(a) the mission of the Republic in the foreign country of the
applicant’s usual residence, which includes country of origin,
permanent residence and long term temporary residence;
(b) the mission of the Republic in a foreign country of which the
applicant holds a valid passport; or
(c) any mission of the Republic that may from time to time be
designated by the Director-General to receive applications in
respect of an adjoining or nearby foreign country in which a mission
of the Republic is not present.”
[48]
Section 10(1)
of the
Immigration Act provides
:
“
Upon admission, a foreigner, who is not a
holder of a permanent residence permit, may enter and sojourn in the
Republic only if
in possession of a visa issued by the
Director-General for a prescribed period.”
[49]
Section 10(2)
of the
Immigration Act provides
:
“
Subject to this Act, upon application in
person and in the prescribed manner, a foreigner may be issued one
of the following visas.”
The types of visas
which may be issued are specified in section 10(2)(a)-(l) and
include visas for the purposes of transit through
the Republic
(section 10B); a visit (section 11); study (section 13);
conducting activities in the Republic in terms
of an international
agreement (section 14); establishing or investing in a business
(section 15); working as a crew
member of a conveyance in the
Republic (section 16); obtaining medical treatment
(section 17); staying with a
relative (section 18);
working (sections 19 and 21); retirement (section 20); an
exchange programme (section 22);
or applying for asylum
(section 23).
[50]
Section 22
of the
Refugees Act.
[51
]
Section 22(5)
of the
Refugees Act provides
:
“
A permit issued to any person in terms of
subsection (1) lapses if the holder departs from the Republic
without the consent of
the Minister.”
[52]
Section 31(2)(c)
of the
Immigration Act provides
:
“
Upon application, the Minister may under
terms and conditions determined by him or her–
…
(b)
grant a foreigner or a category of
foreigners the rights of permanent residence for a specified or
unspecified period when special
circumstances exist which would
justify such a decision: Provided that the Minister may -
…
(c) for good cause, waive any prescribed requirement or form.”