The Minister of Home Affairs v Ahmed

The second, third, and fourth respondents were asylum seekers in South Africa holding permits under section 22 of the Refugees Act 130 of 1998. While in South Africa, they applied for visas under the Immigration Act 13 of 2002: the second respondent applied for a visitor's visa under section 11, while the third and fourth respondents applied for critical skills visas under section 19. The Department of Home Affairs (DHA) rejected these applications based on Immigration Policy Directive 21 of 2015, which was issued on 3 February 2016 by the Director-General. Directive 21 withdrew the previous Circular 10 of 2008, which had permitted asylum seekers to apply for temporary residence permits while in South Africa. The respondents challenged this refusal in the Western Cape Division, and the court a quo (Sher AJ) declared Directive 21 unconstitutional and invalid, ordering the DHA to consider the applications. The Minister and Director-General appealed with leave of the court a quo.

• Whether asylum seeker permit holders under the Refugees Act 130 of 1998 may apply for visas under the Immigration Act 13 of 2002 while they are within South Africa
• Whether the general rule requiring visa applications to be made abroad applies to asylum seekers
• Whether asylum seekers have 'status' under the Immigration Act enabling them to apply for a change of status under section 10(6)
• The interaction and proper interpretation of the Refugees Act and the Immigration Act
• Whether Immigration Policy Directive 21 of 2015 was lawful

The appeal was upheld. The order of the court below was set aside and replaced with an order dismissing the application. No costs order was made.

Asylum seeker permit holders under section 22 of the Refugees Act 130 of 1998 may not, while they are in South Africa, apply for a visa under section 10(2) of the Immigration Act 13 of 2002, read with regulation 9(2) of the Immigration Regulations. The general rule is that visa applications must be made in person abroad at South African foreign missions. The exception in section 10(6) of the Immigration Act, which permits applications for change of status while in South Africa, applies only to holders of visas issued under the Immigration Act and not to asylum seekers. Asylum seekers have no 'status' under the Immigration Act as defined in section 1(1). Section 22(2) of the Refugees Act provides that upon issue of an asylum seeker permit, any permit issued under the Immigration Act becomes null and void, confirming that asylum seekers do not enjoy status under the Immigration Act and are governed exclusively by the Refugees Act regime.

The Court noted that the Minister's power to waive prescribed requirements under section 31(2)(c) of the Immigration Act was not relevant to the respondents' case because they had not applied to the Minister for such a waiver. The Court observed that if such an application had been made and refused, the remedy would have been an application for review. The Court also commented that it would be anomalous to extend the in-country application exemption to asylum seekers when even holders of visitor's and medical treatment visas (who do have status under the Immigration Act) are ordinarily excluded from applying for change of status within South Africa and must apply abroad.

This case is significant because it clarifies the interaction between the Refugees Act 130 of 1998 and the Immigration Act 13 of 2002, establishing that asylum seekers cannot apply for visas under the Immigration Act while in South Africa. The judgment provides authoritative interpretation of the general rule requiring visa applications to be made abroad and the limited exceptions thereto. It confirms that asylum seekers have a distinct legal status under the Refugees Act that does not afford them the same rights as visa holders under the Immigration Act. The case has important practical implications for thousands of asylum seekers in South Africa who may wish to regularize their status through Immigration Act processes, requiring them instead to either pursue their asylum claims to completion or leave the country to apply for visas abroad.