The Minister of Home Affairs v Ahmed

The second, third and fourth respondents were asylum seekers in South Africa holding asylum seeker permits issued under section 22 of the Refugees Act 130 of 1998. While physically present in South Africa, they applied for various visas under the Immigration Act 13 of 2002: a visitor’s visa (second respondent) and critical skills work visas (third and fourth respondents). Their applications were rejected by the Department of Home Affairs pursuant to Immigration Directive 21 of 2015, which withdrew an earlier directive (Circular 10 of 2008) that had allowed asylum seekers to apply for visas under the Immigration Act. The respondents successfully challenged the refusals in the Western Cape Division of the High Court, which declared Directive 21 unconstitutional and ordered the Department to process the visa applications. The Minister of Home Affairs and the Director-General appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the Western Cape Division was set aside and replaced with an order dismissing the application. No costs order was sought.

The case authoritatively clarifies the relationship between the Immigration Act and the Refugees Act, confirming that asylum seekers may not apply for visas under the Immigration Act while in South Africa. It reinforces the distinction between asylum seeker status under refugee law and visa status under immigration law, and limits the scope of in-country applications for a change of status. The judgment has significant implications for asylum seekers seeking to regularise their stay through immigration visas.