On Tuesday, 9 October 2018 the apex court of South Africa – the highest court in the country, the Constitutional Court – ruled that those asylum seekers and refugees who are in possession of a temporary asylum seeker permit may apply for a mainstream visa or a temporary or permanent residence permit under the Immigration Act.

Some years ago, the Director General of the Department of Home Affairs issued a departmental directive referred to as the “Dabone Directive”. In terms of this directive it became possible for an asylum seeker holding a temporary asylum seeker visa, as well as an asylum seeker who had been confirmed as a refugee, to apply for an appropriate visa under the Immigration Act. This meant that applicants had to qualify for temporary or permanent residence, but did not have to relinquish their asylum seeker or refugee status.

A subsequent ruling by the Director General of the Department of Home Affairs saw the Dabone Directive being withdrawn, thereby closing the door on this process. A series of court applications in the Western Cape High Court followed, culminating in an appeal to the Supreme Court of Appeal. During that process, there was a see-saw of change. Firstly, in an appeal against the original successful court application in the Western Cape High Court, the appeal was upheld, thereby maintaining the status quo.

The Director General and Minister of Home Affairs then appealed that ruling to the Supreme Court of Appeal, who confirmed the court a quo, i.e. the Western Cape High Court’s decision, to uphold the Dabone Directive.

There is only one more level of appeal in South African law, and that is to approach the Constitutional Court on related matters that have constitutional implications.

The current judgement is therefore the end of the road on this topic.

What does this “new” dispensation mean for you if you are currently the holder of a temporary asylum seeker permit?

If you indeed qualify for temporary or permanent residence, you can now apply for it. There may be a small time lag between the court order and the implementation of that order, but the Constitutional Court ruling has opened the door for you.

Therefore, if you are the holder of a temporary asylum seeker permit that has been renewed timeously on an ongoing basis, we suggest that you contact our office urgently so that we can evaluate the viability of changing your status without prejudicing your current status. Please respond by email to enquiries@immigration.org.za with “Asylum seeker/refugee change of status” in the subject line.

Should you have any further queries, please do not hesitate to contact our office.

Julian Pokroy

Immigration and Citizenship Law Attorney