Ahmed and Others v Minister of Home Affairs and Another (CCT273/17) [2018] ZACC 39; 2018 (12) BCLR 1451 (CC); 2019 (1) SA 1 (CC) (9 October 2018)

Ahmed and Others v Minister of Home Affairs and Another (CCT273/17) [2018] ZACC 39; 2018 (12) BCLR 1451 (CC); 2019 (1) SA 1 (CC) (9 October 2018)

The Constitutional Court held that Immigration Directive 21 of 2015, to the extent that it imposes a blanket ban on asylum seekers applying for visas or permanent residence permits without provision for exemption under section 31(2)(c) of the Immigration Act, is inconsistent with the Immigration Act and invalid. The Directive unlawfully restricts the rights of asylum seekers by imposing requirements not found in the Act or Regulations, particularly regarding permanent residence permits, which do not require applications to be made from abroad. The Directive is ultra vires the empowering legislation and cannot override statutory rights or regulations. Asylum seekers may apply for visas or...

Citation
[2018] ZACC 39
Parties
Applicant: Tashriq Ahmed; Applicant: Arifa Musaddik Fahme; Applicant: Kuzikesa Jules Valery Swinda; Applicant: Jabbar Ahmed; Respondent: Minister of Home Affairs; Respondent: Director-General of Home Affairs
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
9 October 2018
Case Number
CCT 273/17
Procedural Posture
Leave to Appeal / Appeal From Supreme Court of Appeal, Following High Court Judgment
Outcome
Leave to appeal granted; appeal upheld; Immigration Directive 21 of 2015 declared invalid to the extent it imposes a blanket ban on asylum seekers applying for visas or permanent residence permits without provision for exemption; no order as to costs.
Judges
Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ, Theron J
Legal Topics
Immigration Directives, Ultra Vires, Right to Dignity, Just Administrative Action, Refugee Status, Permanent Residence Permits
Constitutional Law Administrative Law Immigration Directives Ultra Vires Right to Dignity Just Administrative Action Refugee Status Permanent Residence Permits

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Parties

Tashriq Ahmed

Applicant

Arifa Musaddik Fahme

Applicant

Kuzikesa Jules Valery Swinda

Applicant

Jabbar Ahmed

Applicant

Minister of Home Affairs

Respondent

Director-General of Home Affairs

Respondent

Procedural Posture

Leave to Appeal / Appeal From Supreme Court of Appeal, Following High Court Judgment

Legal Issues

  1. 1 Whether Immigration Directive 21 of 2015 is valid and consistent with the Immigration Act and Regulations.
  2. 2 Whether asylum seekers are entitled to apply for temporary and permanent residence permits under the Immigration Act.
  3. 3 Whether the Directive unjustifiably limits the right to dignity and just administrative action of asylum seekers.

Ratio Decidendi

The Constitutional Court held that Immigration Directive 21 of 2015, to the extent that it imposes a blanket ban on asylum seekers applying for visas or permanent residence permits without provision for exemption under section 31(2)(c) of the Immigration Act, is inconsistent with the Immigration Act and invalid. The Directive unlawfully restricts the rights of asylum seekers by imposing requirements not found in the Act or Regulations, particularly regarding permanent residence permits, which do not require applications to be made from abroad. The Directive is ultra vires the empowering legislation and cannot override statutory rights or regulations. Asylum seekers may apply for visas or...

Court Disposition

Leave to appeal granted; appeal upheld; Immigration Directive 21 of 2015 declared invalid to the extent it imposes a blanket ban on asylum seekers applying for visas or permanent residence permits without provision for exemption; no order as to costs.

Orders

  • Leave to appeal is granted.
  • The appeal is upheld and the order of the Supreme Court of Appeal is set aside.