File photo: INLSA

Asylum seekers may no longer apply for any type of visa while they are in South Africa. They must do so before entering.

So the Supreme Court of Appeal found earlier this week.

The judgment comes after Home Affairs Minister Hlengiwe Buhle Mkhize and department director-general Mkuseli Apleni appealed a previous high court ruling 
that asylum seekers were entitled to apply for visitors and work visas while in the country.

The matter was brought to the Western Cape High Court in 2003 by the Legal Resources Centre on behalf of 13 asylum seekers. 

It was settled, and an order, which came to be known as the “Dabone Order”, was agreed on between the parties. 

Following the Dabone Order, the director-general soon issued a directive that asylum seekers in possession of a permit could apply for one of the temporary residence permits, as well as permanent residency.

However, on February 3, 2016, the Department of Home Affairs issued a new directive stating that that would not longer be the case.

This lead to the denial of visa applications made by Arifa Musaddik Fahme, Kuzikesa Jules Valery Swinda and Jabbar Ahmed.

Fahme, Swinda and Ahmed became the respondents against the department in the Supreme Court of Appeal matter this week. 

Home Affairs spokesperson David Hlabane said: “We are very pleased with the judgment as the department was of the considered view that the Western Cape Division of the High Court erred in its judgment, and the Supreme Court of Appeal has concurred with the department in this regard.”

“The respondents did not comply with the general rule laid down by section 10 (2) 
of the Immigration Act read with regulation 9 (2) of the immigration regulations that applications for visas must be made abroad.”

Hlabane said the department would oppose an appeal on this judgment as it “fully agreed” with the Supreme Court of Appeal on the matter. 

Tashriq Ahmed, human rights attorney for the asylum seekers, said he and his clients would appeal the judgment.

Ahmed said: “We are definitely going to appeal. We are aggrieved but we always knew this matter would ultimately end up at the Constitutional Court because it is a constitutional matter.”  

He said for the past 13 to 15 years they were allowed to apply for visas and then things suddenly changed, hence they felt this ruling was “not fair”. 

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