Change of Status Applications for Asylum Seekers Now Possible…AGAIN

In the ever changing landscape that is South African immigration, the plight of foreigners becomes increasingly onerous almost by the day. In accordance with the prevailing status quo, the Director-General (“DG”) of the Department of Home Affairs (“DHA”), Mr Mkuseli Apleni, issued a Directive (21 of 2015) withdrawing Circular 10 of 2008 which served as confirmation of a High Court order in the Dabone case which effectively afforded Refugees and Asylum Seekers the freedom to apply for both temporary residence visas and permanent residence permits from within the Republic.

Directive 21 of 2015 withdrew this former circular with immediate effect which resulted in cataclysmic consequences as Refugees and Asylum Seekers could no longer file their applications for temporary residence visas and/or permanent residence permits through the normal course at VFS Global.

However, the matter was taken to the High Court (Western Cape Division, Cape Town) and Acting Judge Sher was to preside over the matter. AJ Sher handed down a comprehensive 53 page judgment in which he drew the conclusion that the DG, in issuing Directive 21, had acted arbitrarily and irrationally and that he did not apply his mind to the matter properly. It is imperative to note that AJ Sher expressly mentioned that even failed asylum seekers may apply for a visa in terms of and pursuant to section 32 of the Immigration Act.

The consequence of this judgment is that Immigration Directive 21 is set aside on the basis that its issuance was arbitrary and unconstitutional. This is a resounding victory for all Refugees and Asylum Seekers as the setting aside of Directive 21 has to effect that Circular 10 of 2008 is reinstated which means that Refugees and Asylum Seekers may, once again, apply for temporary residence visas and/or permanent residence permits through the normal course at VFS Global.

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