Appeal: Human rights lawyer Tashriq Ahmed argues that all foreigners should be able to apply for visas. Picture: ESA ALEXANDER
Appeal: Human rights lawyer Tashriq Ahmed argues that all foreigners should be able to apply for visas. Picture: ESA ALEXANDER

A group of asylum seekers will argue in the Constitutional Court on Tuesday that all foreigners, including asylum seekers and refugees, in SA are entitled to apply for visas.

They are approaching the top court for leave to appeal against a decision by the Supreme Court of Appeal in September 2017 that overturned a high court judgment, which declared that a 2015 immigration directive by the Department of Home Affairs was invalid and inconsistent with the Constitution.

The directive caused the withdrawal of a 2008 circular, which confirmed that anyone classified as an asylum seeker or refugee under the Refugees Act was allowed to apply for a visa or permit in terms of the Immigration Act.

The circular provided that the only application a refugee could make in terms of the Immigration Act was for permanent residency.

Human rights lawyer Tashriq Ahmed and three of his clients approached the High Court in Cape Town after the asylum seekers’ applications for asylum were denied.

One of the asylum seekers then applied for a visitor’s visa, provided for in terms of the Immigration Act for the spouse of a work visa holder, in order to remain with her husband and children in SA.

The Department of Home Affairs refused her application based on the directive. The other two asylum seekers applied for critical skills visas, but they were declined.

In setting aside the directive that had been issued by the department, the high court found that it was inconsistent with the Constitution.

The department then approached the Supreme Court of Appeal, which overturned the ruling by the high court.

The Supreme Court of Appeal held that the general rule, subject to a few exceptions, was that a person could apply for a visa or permit only under the Immigration Act from outside the borders of SA and that the three asylum seekers were not entitled to rely on the Immigration Act as they were in SA.

The court found that the applicants were subject to the Refugees Act and not the Immigration Act.

Ahmed and his clients will now argue in the Constitutional Court that on a proper reading of both the Immigration Act and Refugees Act all foreigners may apply for visas.

They are also arguing that the directive was beyond the department’s legal power or authority as it was contrary to the objectives and purposes of the Immigration Act.

The department is arguing that a person must be outside the country in order to apply for a visa under the Immigration Act. It is furthermore arguing that asylum seekers generally have no status under the act when they are already in the country, as they are covered by the Refugees Act.

The department wants the Constitutional Court to dismiss Ahmed and his clients’ application for leave to appeal or, if leave is granted, that the appeal be dismissed.

quintalg@businesslive.co.za

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