The case hinged on the validity of the Immigration Directive 21 of 2015. The main issue was 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 (13 of 2002). The applicants argued that the Immigration Act does not expressly exclude asylum seekers, and 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 (however, the applicants did not attack the constitutional validity of the legislation or its application to asylum seekers). The respondents countered that the Directive is consistent with the legislative and regulatory framework of the Refugees Act and Immigration Act.
The court held that if the Directive overrides, amends or conflicts with the provisions and/or scheme of the Immigration Act, then it is ultra vires and unlawful, because 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). The review was based on the fact that the Directive is treated as binding by the people tasked to implement, which it is sufficient for a court to make a determination on whether the Directive is ultra vires and thus invalid.
The court held that the Directive effectively imposes a blanket ban on asylum seekers applying for temporary or permanent residence visas under the Immigration Act, and to the extent that it does, it is ultra vires and invalid.
Immigration law; immigration directive; administrative law; validity of directive; asylum seekers; visas; residence permits; ultra vires
For just over a decade, asylum seekers who were in possession of a temporary asylum seeker permit could apply for a temporary residence permit contemplated in the Immigration Act, as well as permanent residence permits. In addition, 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. In 2016 the Department of Home Affairs issued Directive 21, which had the effect that a holder of an asylum seeker permit who has not been certified as a Refugee could not apply for a temporary residence visa or permanent residence permit in terms of the Immigration Act. The applicants were an attorney specialising in immigration law and asylum seekers who have been refused visas or permits, on the ground that their asylum claims were subject to an appeal before the Refugees Appeal Board. The respondents were the Minister of Home Affairs (Minister) and the Director-General of the Department.
The appeal is upheld and the order of the Supreme Court of Appeal is set aside. To the extent that Immigration Directive 21 of 2015 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 and invalid.
Asylum seekers are often not in possession of valid passports or identity documents and not in the position to readily obtain their documents, and there was a need 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. The court stressed that no administrative hurdles, relating to the possession of passports and the like, could be introduced by the Department in order to disallow or discourage these kinds of applications.