Ahmed and Others v Minister of Home Affairs and Another

• Jurisdiction: South Africa
• Judgment Date: 21 September 2016
• Citation: 2017 (2) SA 417 (WCC)

Ahmed and Others v Minister of Home Affairs and Another
2017 (2) SA 417 (WCC)

2017 (2) SA p417

Citation	2017 (2) SA 417 (WCC)
Case No	3096/2016
Court	Western Cape Division, Cape Town
Judge	Sher AJ
Heard	June 6, 2016
Judgment	September 21, 2016
Counsel	A Katz SC (with A Brink) for the applicants.; W Mokhari SC (with A Nacerodien and DM Nyathi) for the respondents.

Flynote : Sleutelwoorde B

Immigration — Refugee — Asylum seeker — Whether asylum seeker may apply for visa under Immigration Act — Refugees Act 130 of 1998, s 27(c); Immigration Act 13 of 2002, s 27(d).

Headnote : Kopnota

Mr and Mrs Fahme and their four minor children were in South Africa. He was C the holder of a general work visa and she of an asylum-seeker's permit. When she attempted to apply for a visitor's visa, her application was refused on the basis of the first respondent's (the Department's) Directive 21, which barred holders of asylum-seeker permits from applying for visas or permits under the Immigration Act 13 of 2002 (see [8] – [9]). D

Mr Swinda and Mr Ahmed were asylum seekers whose applications for asylum had been refused, and who had appealed to the Refugee Appeal Board. Pending the appeals, both had applied for critical-skills visas, and both applications had been refused, apparently on the basis that pending the appeals, both were still regarded as asylum seekers, and so precluded from applying for the visas (see [11]). E

Directive 21's basis was s 27(c) of the Refugees Act 130 of 1998, which provides 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 . . . was granted asylum . . . .' The Department interpreted this to mean that asylum seekers could not apply for visas or permits under the Immigration Act (see [9], [40]). F

Mrs Fahme, Mssrs Swinda and Ahmed, and the first applicant, an immigration attorney, applied to set aside the directive.

Held, that it should be set aside: the Department had misinterpreted the Refugees and Immigration Acts; and the directive infringed Mrs Fahme's constitutional right to dignity (see [43] – [44], [49] – [50], [63], [67] – [68], G [72]).

Ordered, that the directive be set aside; that second respondent (the Director-General) allow Mrs Fahme to apply for a visitor's visa, and consider Mssrs Swinda and Ahmed's appeals of the refusal of their applications for critical-skills visas (see [72]).

Cases cited H

Southern Africa

Barnard NO v Regspersoon van Aminie en 'n Ander 2001 (3) SA 973 (SCA): dctum in para [27] applied

Booysen and Others v Minister of Home Affairs and Another 2001 (4) SA 485 (CC) (2001 (7) BCLR 645): applied I

City of Cape Town v Robertson 2005 (2) SA 323 (CC) (2005 (3) BCLR 199; [2004] ZACC 21): dictum in para [52] applied

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): dicta in paras [36]-[37] applied J

2017 (2) SA p418

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): dictum in para [53] applied A

Du Toit v Minister for Safety and Security and Another 2009 (6) SA 128 (CC) (2010 (1) SACR; 2009 (12) BCLR 1171; [2009] ZACC 22): referred to

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) (2007 (3) BCLR 219; [2006] ZACC 24): referred to B

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) C (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): dictum in para [21] applied

Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A): dictum at 662G applied

Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C) (2007 (4) BCLR 416; [2007] 1 All SA 97): referred to

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775; [2004] ZACC 12): dicta in paras [26]-[27] applied D

Makhate v Vodacom Ltd 2016 (4) SA 121 (CC) ([2016] ZACC 13): dictum in para [88] applied

Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) (2004 (2) BCLR 120; [2003] ZASCA 142): dictum in para [25] applied E

Natal Joint Municipal Pension v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in para [18] applied

National Credit Regulator v Opperman and Others 2013 (2) SA 1 (CC) (2013 (2) BCLR 170; [2012] ZACC 29); referred to F

Pharmaceutical Manufacturers Association and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241: [2000] ZACC 1): dictum in para [85] applied

Principal Immigration Officer v Bhula 1931 AD 323: referred to

Road Accident Fund v Smith NO 1999 (1) SA 92 (SCA) ([1998] 4 All SA 429): referred to G

Rutenberg v Magistrate, Wynberg, and Another 1997 (4) SA 735 (C): dictum at 754B applied

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3); referred to

SATAWU and Others v Moloto and Another NNO 2012 (6) SA 249 (CC) (2012 (11) BCLR 1177; [1995] ZACC 19): dictum in para [44] applied H

Somali Association of South Africa and Others v Limpopo Department of Economic Development, Environment and Tourism and Others 2015 (1) SA 151 (SCA): referred to

South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others I 2016 (2) SA 522 (SCA) ([2015] 4 All SA 719; [2015] ZASCA 156): referred to

South African Police Service v Public Servants Association 2007 (3) SA 521 (CC) ([2007] 5 BLLR 383; [2006] ZACC 18): dictum in para [20] applied

Stafford v Special Investigating Unit 1999 (2) SA 130 (E) ([1998] 4 All SA 543): J referred to.

2017 (2) SA p419

England

R (on the application of ST (Eritrea)) v Secretary of State for the Home Department [2012] UKSC 12: referred to

R v Immigration Officer at Prague Airport; Ex parte European Roma Rights Centre [2004] UK HL 55: referred to.

European Court of Human Rights

Medvedyev v France (ECHR App No 3394/03, 29 March 2010): referred to

MSS v Belgium and Greece (ECHR App No 30696/09, 21 January 2011): referred to

Vilvarajah v United Kingdom (1991) 14 EHRR 248: referred to.

United States

Nishimura Ekiu v United State 142 US 651 (1892): referred to

Legislation cited

The Immigration Act 13 of 2002, s 27(d): see Juta's Statutes of South Africa 2015/16 vol 7 at 4-48 – 4-49

The Refugees Act 130 of 1998, s 27(c): see Juta's Statutes of South Africa D 2015/16 vol 7 at 4-27 – 4-28.

Case Information

A Katz SC (with A Brink) for the applicants.

W Mokhari SC (with A Nacerodien and DM Nyathi) for the respondents. E

An application to set aside a directive issued by the second respondent.

Order

(i)

Immigration Directive 21 of 2015, which was issued by the Director-General of the Department of Home Affairs on 3 February 2016, is declared to be inconsistent with the Constitution of the F Republic of South Africa, 1996, and invalid, and is set aside.

(ii)

Second respondent is directed to permit the second applicant to submit an application for a visitor's visa in terms of s 11(b)(iv) of the Immigration Act 13 of 2002, within 15 days from date of this order. G

(iii)

Second respondent is directed to consider third applicant's appeal against the refusal of his application for a critical-skills visa, as rejected by him on 4 January 2016, in the light of this judgment and to make a decision in the appeal within 15 days of the date of this order.

(iv)

Second respondent is directed to consider fourth applicant's appeal H against the refusal of his application for a critical-skills visa, as rejected by him on 6 October 2015, in the light of this judgment and to make a decision in the appeal within 15 days of the date of this order.

(v)

Second respondent shall be liable for applicants' costs of suit, I including the costs of two counsel where so employed.

Judgment

Sher AJ:

[1] This matter lies at the intersection of immigration and refugee law, and their competing interests and principles. The essential question it J

2017 (2) SA p420

Sher AJ

A poses is whether a failed asylum seeker is entitled to apply for a temporary residence permit or 'visa' as it is known, in terms of our current immigration law.

[2] A central tenet of immigration law is founded on the accepted maxim of international law —

B 'that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe'. [1]

As such, immigration law is essentially about control over the admission C of foreigners, or so-called 'aliens' as they are commonly referred to, and as such —

'states the world over consistently have exhibited great reluctance to give up their sovereign right to decide which persons will, and which will not, be admitted to their territory and be given a right to settle there'. [2]

D [3] On the other hand, fundamental to refugee law (at least in respect of states who are parties to international instruments such as the 1951 Convention Relating to the Status of Refugees (hereinafter 'the Refugee Convention'), the 1967 Protocol Relating to the Status of Refugees, and the 1969 Organisation of African Unity Convention Governing the E Specific Aspects of Refugee Problems in Africa (hereinafter 'the OAU Refugee Convention') to which South Africa has acceded), is the principle that such states have a duty, in terms of...