C.E. and Others v Minister of Home Affairs

The first applicant, Ms C.E., a citizen of Angola, applied for permanent residence exemptions under section 31(2)(b) of the Immigration Act for herself and her two minor children (the second applicant, P.E., and the third applicant, S.E.). S.E. is approximately 17 years old and suffers from severe dystonic spastic cerebral palsy, is developmentally delayed, non-verbal, and has quadriplegia. He requires lifelong, highly specialised medical treatment and care. The family entered South Africa in November 2013 on visitors' visas, which expired in January 2014, primarily to seek medical care for S.E. S.E.'s father returned to Angola shortly after arrival and subsequently abandoned the family, leaving Ms E.C. as an impoverished single parent. S.E. was accepted at the Friends Day Centre, a charitable special care centre in Cape Town, and received free medical care from the Red Cross Children's Hospital. Ms E.C. and the children remained in South Africa unlawfully for approximately ten years after their visas expired. The applicants sought permanent residence on the basis of 'special circumstances' arising from S.E.'s medical condition and his need for ongoing care in South Africa, which they alleged would not be available in Angola. The Minister of Home Affairs refused the application on 12 June 2022, stating that he found no special circumstances justifying permanent residence and that the Act makes provision for medical treatment visas. The applicants reviewed the Minister's decision.

• Whether the Minister of Home Affairs committed a material error of fact by stating in his reasons that the Immigration Act makes provision for medical treatment visas, when the applicants could not, as a matter of fact and law, obtain such visas.
• Whether the Minister erred by failing to consider that medical treatment visas are limited to six months and are inappropriate for permanent medical conditions.
• Whether the Minister erred in finding that the applicants were highly likely to become public charges because they relied on charitable funding which was not guaranteed indefinitely.
• Whether the Minister failed to take into account the best interests of the minor children as required by section 28(2) of the Constitution and the Children's Act 38 of 2005.
• Whether the court should substitute the Minister's decision with an order granting the applicants permanent residence exemptions, or remit the matter for reconsideration.

1. The respondent's decision in terms of which the applicants' application for exemption in terms of section 31(2)(b) of the Immigration Act 13 of 2002 is reviewed and set aside. 2. The matter is remitted to the Minister for reconsideration in the light of the judgment, to be done within six months. 3. There is no order as to costs.

An administrative decision-maker is bound by the reasons originally given for a decision and cannot supplement or validate those reasons ex post facto in answering affidavits during review proceedings. Furthermore, in exercising a discretionary power under section 31(2)(b) of the Immigration Act where minor children are affected, the decision-maker must give due and proper consideration to the best interests of the child as required by section 28(2) of the Constitution and the Children's Act 38 of 2005, and the failure to indicate in the reasons furnished that such consideration was undertaken renders the decision reviewable under section 6(2)(e)(iii) of PAJA for failure to consider relevant information.

The court expressed concern about the potential broader implications of granting permanent residence on the basis of medical need and charitable support. Bawa AJ noted that the court cannot 'be careless in assuming powers bestowed on the Minister' as it may 'create a ground for permanent residence carved as an exemption that was not contemplated by the Legislature.' The court observed that many South African children with similar conditions do not receive equivalent charitable assistance or access to specialised equipment, and that the costs of such care in medical negligence cases run into millions of rands. The court stated it was 'certainly not equipped to give proper consideration to what ultimately is a policy-laden decision to make.' The court further noted that the applicants entered South Africa under the guise of a visitor's visa for holiday purposes when their true purpose was to obtain medical care, without applying for a medical visa, thereby denying South African authorities the opportunity to make an informed decision on entry.

The case reinforces the principle that decision-makers under the Immigration Act, including the Minister of Home Affairs, are constitutionally obliged to consider the best interests of children when making decisions affecting them, even in the context of broad discretionary powers. It affirms that failure to demonstrate such consideration in the reasons provided renders the decision reviewable. The case also reaffirms the principle from National Lotteries Board v SA Education and Environment Project that administrators are bound by the reasons they originally give and cannot later supplement them to defend a review. The judgment demonstrates judicial restraint in not substituting the administrator's policy-laden decision on permanent residence exemptions, respecting the separation of powers doctrine as articulated in Trencon Construction v IDC.