Home Affairs to be taken to court

Concern over withdrawal of rights of asylum seekers and refugees

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Photo of Mkuseli Apleni
A directive signed by Home Affairs director general Mkuseli Apleni is to be challenged in court. Photo: government website

Immigration lawyers have accused the Department of Home Affairs of being in contempt of a High Court order. This comes after the department withdrew an instruction allowing asylum seekers and refugees to apply for permanent residence without giving up their asylum or refugee status. The Department also withdrew an instruction allowing asylum seekers and refugees to apply for temporary residence without a valid passport.

Temporary residence visas include relatives’ visas and work visas.

“The effect of this is huge, as asylum seekers are struggling to get married and register the birth of their children with South African spouses,” the Forum of Immigration Practitioners said.

Another effect was that asylum seekers who did not have temporary residence could not open a bank account, FIPSA said. This made them vulnerable to crooks who preyed on them because they carried cash.

The directive signed by Mkuseli Apleni on 3 February 2016 explains that the Department believes that asylum seekers (who are yet to be granted refugee status) should not have their status changed, for example given permanent or temporary residence, until they are certified as refugees. Following this logic, the Department has withdrawn a circular of 2008 which had allowed asylum seekers to apply for permanent residence.

In the directive, Apleni, who is Director General of Home Affairs, states, “I wish to advise all immigration officials that Departmental Circular No. 10 of 2008 has fallen away since the 26th of May 2014 and is hereby officially withdrawn. All applications for change of status from asylum seeker permit to temporary residence visa which are still pending in the system should be processed as per this directive regardless of the date of application”.

Apleni’s directive comes in spite of a 2003 Western Cape High Court order. In the matter of Dabone and others vs the Minister of Home Affairs, the court instructed that asylum seekers and refugees should be able to apply for temporary residence permits and permanent residence without having to cancel their asylum seeker status or give up their refugee status.

Another important provision of the court order was that asylum seekers or refugees do not need to be in possession of a valid passport for their temporary residence permits to be processed or issued.

FIPSA said the Department’s new directive was “breaking the law” by deviating from the court order.

“The Dabone Judgement is in fact a consent order of court which means that as parties to the agreement the Department of Home Affairs have agreed to it and that it is binding. As such it cannot be appealed to a higher court and any deviation thereto constitutes a contempt of court,” said FIPSA.

FIPSA also said that VFS, which is the company that processes visa documents, had stopped accepting applications for temporary or permanent residence from refugees or asylum seekers.

FIPSA and other interested parties are to take the Department to court on 21 April 2016, with Tashriq Ahmed representing them. FIPSA told GroundUp that the Department had said it would defend the matter. “But it is a consent order, so it is inconceivable what defence they can mount. As we have seen before, Home Affairs have a pattern of just appealing matters to frustrate clients as justice is expensive, in the hope clients will run out of money.”

FIPSA said asylum seekers and refugees were vulnerable and few organisations took up their battle to win their rights under the constitution.

The Department’s spokesperson promised on Friday to respond to questions but has not yet done so.

TOPICS:  Human Rights Immigration

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Write a letter in response to this article


Dear Editor

I am an asylum seekers permit holder currently studying medicine at a South African university. I have done pharmacy in India and want to work and settle here in RSA. I have applied for study visa because i can not register myself with the Pharmacy Council of SA while on asylum. Home Affairs said i must continue asylum and study. But i neither register nor work in pharmacy. I have contacted the refugee office also but my Asylum is under Refugee Appeal Board not Standing Committee for Refugee Appeal Board so there is no chance to get permanent residence on asylum after five years. Can someone please help me. I am under skilled worker category.

[GroundUp Editor note: If anyone responds with an offer of assistance, we can put you in touch with the letter writer.]

Dear Editor

I hold an asylum permit which i must renew every six months only in Pretoria. Now i am currently doing intensive full-time three-year PhD research at a university in Cape Town. I find these routine trips very cumbersome. They slow the whole research process which might compromise the quality of the research. Additionally, I am required to present globally at preliminary stages of my research but currently with that permit i can't leave South Africa. I kindly need help urgently to enable me to enhance further development in this country, and globally.

Dear Editor

This issue of not being able to convert asylum to permit is greatly affecting many people. There are a lot of professionals here in SA who can really work toward the growth of the nation, but they are not given access to change their asylum status.
For example, a student on research program running his/her PHD here in SA is unable to carry out a research program properly. My question now is that when is the outcome of the court. We heard the case is in court between the immigration lawyers and DHA. Will DHA win this case and deny many good things?

Dear Editor

I've been using asylum papers for eight years. Every time I go to Home Affairs I'm given six months. I got a job in which I'm working for four years now. I don't have a bank account. Banks don't even want to help us. I can't even be registered. Can someone please help asylum seekers?

Dear Editor

We hold permanent resident certificates and have a new baby, born here in South Africa in 2016. In order to apply for her visa as pathway to permanent resident , [as per the new regulation] the Home Affairs has advised us to visit our home Embassy to get the child’s original birth certificate and to take it to VFS Global to apply for her visa. However, we got our permanent residence permits under the refugee category which cuts our relationship with our home embassy. All our children who were born here have been already naturalised. Please advise us what we should do with our new baby born as she risks being an illegal immigrant in the Republic.

Dear Editor

I have had an asylum seeker permit for eight years, with 6-month reviews. I graduated from a college here in SA, qualified as an electrical inspector and this falls on the critical skills list that allows me to apply for a Critical Skills Visa. I did so in January this year and got rejected because I am still an asylum seeker but was given an option of appeal. R2870 was sent to VFS.
Now, I thought of re-applying again. I tried to seek a waiver (Another R1350 through VFS) but again VFS displayed me Directive 21 and couldn't take my application this last Monday. At least this time, they suggested a refund!
Please Assist!

Dear Editor

i would like to find out what the outcome was after home affairs was taken to court. I've been staying away from Home Affairs headache but this topic concerns me too.

Dear Editor

My partner (we are both male and gay) is from DRC - we have a co-habitation agreement (almost 5 years old); he will only qualify for PRP (permanent residence permit) once the co-habitation document signed is 5 years old. As a foreigner (originally asylum; now visitor's permit) it is extremely difficult for him. He has a part time job, is a registered tax payer, but without an ID he cannot do much. I read the letters of people posted here, and I do not know why our SA Home Affairs cannot do something for people who are really trying to be legitimate in the country, and who contribute to the economy. It is not easy. We applied for a PRP, but SA HA do not answer e-mails or phone calls, after 14 months we got hold of Mr Albert Motsoneng, who kindly helped us, to be declined after another two months as our co-habitation was not five years. (Also note every time one pays R1,450 at VFS). The head office of VFS is in India. Try to find Ronny Marhule and see if you can get any response.

Dear Editor

I hold an asylum seeker permit which I have to renew every six months. My father who came before me with my two young sisters was refused asylum and he was asked to leave the country with the whole family. But I and my mother didn't came with my father and my two young sisters, so we couldn't leave because we are on a different file. So my father had to stay because he can't leave without his whole family. But the thing is he doesn't have any papers or anything as an identification only the notice that he is waiting the decision which we will come from the appeal my mother will have to do (her claim also was rejected so she has to appeal). One of my young sisters will be in grade 12 next year and she will be requested to present an ID which she doesn't have because she is on my father's file. Can you please advise!

Dear Editor

I am a legal asylum seeker since 2008. I have a growing car dealership. My problem is I risk dealing in cash.
At times, I have R100,000 in cash and I cannot open a bank account with my asylum permit. I feel unsafe, always.

Dear Editor

I have been had asylum for five years. Now I am a third year varsity student. I have completed all my modules. I am only left with doing in-service training in order to graduate.

Companies refuse to take me in as an intern since i don't have a work permit.

Now Home Affairs refuse to renew my asylum hence I cannot register at the varsity for my last project.

I can't get employed anywhere with an expired asylum permit.

My account is frozen (with the little I have) since the asylum is expired.

My application for work permit hasn't been approved since May 2015.

Can some one please help me.

Dear Editor

I am a Malawian by nationality, but l have been an asylum seekers for six years now. To be honest our country is in a big crisis but nowadays if we want to renew our papers they just reject it. If we say we are suffering in Malawi, then really we are.

Please help us the way you help others. We are here not for a lot of things but we are trying to help those who we left behind so that at end of the day they can have something in their stomach. We are good people and very friendly but l don't know why they don't help us. Please help us: we are crying day and night because we cannot be employed without valid papers.

Dear Editor

I write to kindly find out the outcome of the court case between the Immigration Lawyers and the Department of Home Affairs of South Africa concerning the violation of the High Court Order on Asylum seekers matters. Submission of an international passport for the purpose of asylum has so many implications on the applicant as he/she becomes tied down within the republic. This is so because when such asylum seeker wishes to leave the republic, he/she would be asked to go obtain an "OTC" from his/her country's embassy, whereas some country's embassies have to stop issuing this document.

Dear Editor

Since 2008, I've renewed my asylum permit at the Marabastad branch. For some reason it was rejected and I was suddenly deported back to Zim.

I've grown my own business in South Africa and now I'm leaving it all behind. On my way back I was denied entry and banned from entering SA again.

Dear Editor

I am Zambian and I have two children with a Congolese man. I was an asylum seeker, renewing every six months, until the Department of Home Affairs in Durban told me to leave the country and never come back. l obeyed but because l didn't have any money to fight the decision.

l left the children with their father because he works in South Africa as an electrician. Since l left he has been struggling to get papers for the children. My boy was supposed to start grade one but he didn't because he was told that the mother should be present, or present a paper of guardianship. Why is the birth certificate for the child not sufficient? Even this year he was told the same thing when he tried again.

What should l do? My child has the right to education and the father can't come to Zambia because he is not allowed to leave the country and I am not allowed in South Africa. l left the children with him because l knew that he was going to give them shelter, food and education, all of which l can't provide the moment.

All l want is just for my children to go to school. Please help.

Dear Editor

My younger brother and I were both born in South Africa and our parents fled the DRC to seek refuge in SA. They were asylum seeker permit holders and my brother and I also had asylum seeker permits.

Our parents passed away when I was 6 and my brother was 2 at that time. No one followed up on our asylum seeker renewals. Today we sitting with expired asylum seeker permits and the immigration officers in Pretoria have been very reluctant to help and very rude. What should we do? We cannot work and we cannot study because of this. Please help!

Dear Editor

I was told to submit my international passport when I came to apply for asylum seeker permit in Pretoria Marabastad. I gladly gave it to them and was given a one month temporary asylum seeker permit. I came back the next month to renew it and the Department of Home Affairs in Marabastad arrested me and I was taken to a repatriation centre which they called Lindela.

After 4 months I was released and was given a letter to leave South Africa within two weeks. I went back to Home Affairs in Marabastad Pretoria to get my passport so I can leave the country back to my homeland and they refused to give it to me saying it has been destroyed. Please someone tell me what to do because I am stranded here without work and also cannot go back to my country. I need my passport back.

Dear Editor

I applied for my permanent residence with my son in February 2014 and submitted all of the required documentations as well as paying all the prescribed fees to the home affairs. A new law was promulgated against using your child sometime around August and home affairs gave me an outcome in November, denying me my application based on the new law.

I appealed their decision of the grounds that when I applied there was no law like that and if they have taken my hard earned money when the law was not in force and based my refusal on a law that was not existing when I applied and then to deny me, is fraud. I need legal advice to take home affairs to court for violating me and my child right and a clear case of fraud.

Dear Editor

I hear about countries such as Canada and the US among others who receive refugees transferred from other countries. Why doesn't the South African government work with organisations like IOM to do the same? Can SA really not handle the big population of refugees entering into the RSA?

Dear Editor

I've been using an asylum status for 10 years now. I wonder when I will get my residency status. I want to settle down and start my own business and access a bank account.

Dear Editor

It's quite disheartening that apartheid method of treating certain group of people as less human is being carried out against the Refugees in South Africa.

Companies do not employ a holder of refugee status despite your qualification and skills. Banks do not let you open a bank account. This is gross human violation of human rights. Thus why most refugees who worked hard to improve their lives by acquiring skills resort to have their resident status be altered.

Now the DHM use other means to block them from applying other permits such as scarce skills permit? What is the motivation? It's just sad that refugees are suffering in silence in this country and no one seem to notice.

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