Minister of Home Affairs and Another v Ahmed and Others (1383/2016) [2017] ZASCA 123; 2017 (6) SA 554 (SCA) (26 September 2017)

Minister of Home Affairs and Another v Ahmed and Others (1383/2016) [2017] ZASCA 123; 2017 (6) SA 554 (SCA) (26 September 2017)

The Supreme Court of Appeal held that holders of asylum seeker permits under the Refugees Act may not, while in South Africa, apply for visas under the Immigration Act. The general rule, as set out in section 10(2) of the Immigration Act and Regulation 9(2), is that visa applications must be made abroad. The...

Source-derived case information.

Citation
[2017] ZASCA 123
Parties
Appellant: Minister of Home Affairs; Appellant: Director-General, Home Affairs; Respondent: Tashriq Ahmed; Respondent: Arifa Musaddik Fahme; Respondent: Kuzikesa Jules Valery Swinda; Respondent: Jabbar Ahmed
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 September 2017
Case Number
1383/2016
Procedural Posture
Civil Appeal / Appeal From Western Cape Division, Cape Town
Outcome
Appeal upheld. Application dismissed.
Judges
Ponnan, Leach, Majiedt, Plasket, Schippers
Legal Topics
Refugees Act, Immigration Act, Change of Status, Departmental Policy, Constitutional Invalidity
Administrative Law Civil Procedure Refugees Act Immigration Act Change of Status Departmental Policy Constitutional Invalidity

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Summary, issues, holding and outcome

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Parties

Minister of Home Affairs

Appellant

Director-General, Home Affairs

Appellant

Tashriq Ahmed

Respondent

Arifa Musaddik Fahme

Respondent

Kuzikesa Jules Valery Swinda

Respondent

Jabbar Ahmed

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division, Cape Town

Legal Issues

  1. 1 Whether holders of asylum seeker permits under the Refugees Act may apply for visas under the Immigration Act while in South Africa.
  2. 2 Whether Immigration Directive 21 of 2015 is consistent with the Constitution and valid.
  3. 3 Whether the Department of Home Affairs correctly refused visa applications by asylum seekers made within South Africa.

Ratio Decidendi

The Supreme Court of Appeal held that holders of asylum seeker permits under the Refugees Act may not, while in South Africa, apply for visas under the Immigration Act. The general rule, as set out in section 10(2) of the Immigration Act and Regulation 9(2), is that visa applications must be made abroad. The exception in section 10(6) applies only to holders of certain visas issued under the Immigration Act, not to asylum seekers who have no status under that Act. Section 22(2) of the Refugees Act makes clear that once an asylum seeker permit is issued, any permit under the Immigration Act becomes null and void. The respondents did not apply to the Minister to waive the requirement that...

Court Disposition

Appeal upheld. Application dismissed.

Orders

  • The appeal is upheld.
  • The order of the court below is set aside and replaced by the following order: 'The application is dismissed.'