Xiuguo and Another v Director-General of the Department of Home Affairs and Another (60392/16) [2018] ZAGPPHC 508 (5 July 2018)

Xiuguo and Another v Director-General of the Department of Home Affairs and Another (60392/16) [2018] ZAGPPHC 508 (5 July 2018)

The court found that the directive issued by the First Respondent on 3 February 2016, which retracted Circular No 10 of 2008, does not have retrospective effect on pending legalization applications. The First Applicant's application, submitted prior to the directive, must be considered in accordance with the principles established in Dabone, which allow asylum seekers to apply for residence permits under the Immigration Act. The refusal to register the birth of the Applicants' child was found to be unlawful, as the child is entitled to South African citizenship by virtue of having a South African parent. The Respondents' conduct was inconsistent with constitutional principles of Batho...

Citation
[2018] ZAGPPHC 508
Parties
Applicant: Wu Xiuguo; Applicant: Bruce Miles Marshall; Respondent: Director-General of the Department of Home Affairs; Respondent: Minister of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 July 2018
Case Number
60392/16
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The Respondents are ordered to consider the First Applicant's legalization application, register the birth of the Applicants' child, and pay costs on an attorney and own client scale.
Judges
M Phaga
Legal Topics
Immigration Permits, Retrospective Application of Administrative Action, Birth Registration, Constitutional Rights of Children, Bathopele Principle, Ubuntu
Administrative Law Civil Procedure Constitutional Law Immigration Permits Retrospective Application of Administrative Action Birth Registration Constitutional Rights of Children Bathopele Principle +1 more

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Parties

Wu Xiuguo

Applicant

Bruce Miles Marshall

Applicant

Director-General of the Department of Home Affairs

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the directive issued by the First Respondent on 3 February 2016 applies retrospectively to the First Applicant's legalization application.
  2. 2 Whether the First Respondent is obliged to consider and decide the First Applicant's legalization application under section 32(1) of the Immigration Act and Regulation 26.
  3. 3 Whether the First Respondent must register the birth of the Applicants' child, given one parent is a South African citizen.

Ratio Decidendi

The court found that the directive issued by the First Respondent on 3 February 2016, which retracted Circular No 10 of 2008, does not have retrospective effect on pending legalization applications. The First Applicant's application, submitted prior to the directive, must be considered in accordance with the principles established in Dabone, which allow asylum seekers to apply for residence permits under the Immigration Act. The refusal to register the birth of the Applicants' child was found to be unlawful, as the child is entitled to South African citizenship by virtue of having a South African parent. The Respondents' conduct was inconsistent with constitutional principles of Batho...

Court Disposition

Application granted. The Respondents are ordered to consider the First Applicant's legalization application, register the birth of the Applicants' child, and pay costs on an attorney and own client scale.

Orders

  • The directive issued by the First Respondent dated 3 February 2016 to retract Circular No 10 of 2008 does not have retrospective application to the First Applicant's legalization application dated 12 May 2014.
  • The First Respondent is directed to consider and decide the First Applicant's application for legalization, dated 5 May 2014, under section 32(1) of the Immigration Act and Regulation 26, within two weeks from the date of this order.