The short answer
Unless Home Affairs gave you a letter rejecting your application on the basis of it being “manifestly unfounded”, “unfounded”, or ‘“abusive or fraudulent, this was likely a mistake.
The whole question
Dear Athalie
I recently applied for an accompanying spouse visa using my asylum seeker permit. I previously applied and was accepted for a waiver to apply from within South Africa. Later on, I renewed my asylum seeker documents online and was told to collect them at Marabastad DHA. But when I got there, they told me my permit was blocked and the system would not let me renew it! Why would this happen? And will it affect my accompanying spouse visa?
The long answer
As you applied for and received a waiver to make the application for the accompanying spouse visa from inside South Africa, that cannot be where the problem lies. And besides, the Constitutional Court confirmed in 2019, in the case of Ahmed vs Minister of Home Affairs, that “Asylum seekers must be allowed to apply for visas or permits under the Immigration Act, and if they meet the requirements of that Act, they must be granted the visa or permit. Section 31(2)(c) of the Immigration Act provides that an applicant may apply to the Minister for an exemption from any prescribed requirement for the issuance of a visa or permit.”
That case (Ahmed vs Minister of Home Affairs) was essentially about whether asylum seekers, including those whose applications for refugee status had been refused, were entitled to apply for other visas and immigration permits in terms of the Immigration Act.
Section 10(2) of the Immigration Act entitles any foreigner to apply for a temporary residence permit visa. This includes a study visa (section 13); a visa permitting the holder to establish a business (section 15); a visa to stay with a relative (section 18); a critical skills visa (section 19(4)); a retired person visa (section 20); and a spousal visa (section 11(6)). Section 10(2) stipulates that all visa applications must be made “in the prescribed manner”.
And the Constitutional Court concluded that they were entitled to do so. So, I think that the “blocking” of the renewal of your asylum seeker permit should not affect your application for the accompanying spouse visa. (As you know, an accompanying spouse visa is not the same as a spousal visa that is granted to the spouse of a South African citizen, but is a visa that enables the non-working partner or spouse of a temporary resident in South Africa to accompany their spouse while their spouse is working here. It is issued for three years only, even though the working spouse may have a visa for longer than three years, but it may be renewed within South Africa.)
An accompanying spouse may not work or study in South Africa. However, an asylum seeker with a section 22 permit is allowed to work and study in South Africa.
In terms of renewing your asylum permit, the online renewal process can have three possible outcomes, says the Scalabrini Centre:
A PDF visa – if the request has been filled in correctly and complies with all the requirements, the Department will evaluate the request and if successful, will email a valid visa to the client that they can print and use as a new and valid asylum seeker and refugee permit. The visa will be encrypted.
A letter requesting additional information – if the request is incomplete, an email will be sent back to the requester asking for additional information to be sent to the department via email. The request will not be processed until all information and documents are submitted.
A letter requesting you to appear in person at a Refugee Reception Office (RRO) – if the request cannot be processed online and requires that the requester to appear in person at an RRO, a letter stating this will be sent. This letter will provide such person with the office name, date and time of their appointment.
So, it seems that you got the third outcome when you were asked to go in person to the Marabastad RRO.
If you had already had a second interview with the Refugee Status Determination Officer (RSDO), Home Affairs could have come to a decision about granting you refugee status or not. And in that case, they would be obliged to give you a letter stating their decision and if they had decided against granting you refugee status, the reasons for it. These reasons could only be based on one of the following three grounds: “manifestly unfounded”, “unfounded”, or ‘“abusive or fraudulent”.
All of these can be appealed to the Standing Committee on Refugee Affairs (SCRA) or the Refugee Appeals Authority of South Africa (RAASA).
As there was no such letter given to you, but you were simply told that your asylum seeker renewal was “blocked”, I think it is more likely to be the chaotic state of affairs in Home Affairs and their online system.
A Groundup April 2022 article says that Sharon Ekambaram of Lawyers for Human Rights (LHR) has also confirmed that many refugees have been reporting a breakdown of Home Affairs systems.
Perhaps the best advice is to take legal advice. You could ask one of the following organisations for advice and assistance:
Lawyers for Human Right
Email: info@lhr.org.za
Tel: Pretoria office: 012 320 2943
Legal Resources Centre
Email: info@lrc.org.za
Tel: Johannesburg office: 011 038 9709
You could also phone the UNHCR toll-Free Helpline at 0800 100 030.
Wishing you the best,
Athalie
Answered on Aug. 23, 2022, 12:52 p.m.
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