[Press Release] Ahmed and Others v Minister of Home Affairs and Another CCT273/17

On Tuesday, the 15th of May 2018, the Constitutional Court of South Africa will hear arguments pertaining to the Immigration Directive 21 of 2015 (“Directive 21”). Accordingly, Lawyers for Human Rights have been admitted as amicus curiae to put forth submissions  that Directive 21 is unlawful and invalid.

Directive 21 very explicitly and unmistakably bars asylum seekers, in particular, from applying for visas and permanent residence under the Immigration Act 13 of 2002 through the following express statement: “A holder of an asylum seeker permit who has not been certified as a Refugee may not apply for a temporary residence visa or permanent residence permit”.

South Africa is hailed as a beacon of hope internationally and considered the human rights capital of the world. Sadly its reputation is severly damaged by the manner in which asylum seekers are treated through the failed asylum system.  

The practice of the Department of Home Affairs in itself displays characteristics of institutional xenophobia in its response to migrants and refugees. There is a worrying trend which sees the South African government aligning itself to the policies and practices of the likes of the US, Europe and Australia in scapegoating migrants and refugees and blaming them for all social ills. This policy shift is based on exclusionary encampment, seeing migrants and refugees as a security risk and threat to the country in the name of defending what is in the national interest.

This context is important as the Constitutional Court hears arguments and has to measure the current practice against fundamentals of the Constitution which is embibed in the preamble. On a daily basis we witness the inconsistencies in the adjudication process and the inadequate decision making making in recognition of a persons claims to be a refugee. The most glaring example is the speed with which the Gupta family not only received visas but permanent residence, illustrating how class, wealth and corruption are decisive factors in influencing decisions of legal status.

LHR’s first submission relates to the backlog and delays in the refugee determination system. This particular submission will establish an understanding of the vulnerable circumstances of those asylum seekers who are required to wait many years before receiving a final decision on their asylum applications and left in precarious situations. The second submission will put forth the recommendation that the interpretation of the Refugees Act and the Immigration Act, specifically the nature of the approach thereof, should enable the furtherance and protection of the rights of asylum seekers. An approach favouring this kind of interpretation would accomplish two aims: first, it will strengthen the argument for the invalidity and unlawfulness of Directive 21, and second, it will allow asylum seekers the opportunity to regularize their status under the Immigration Act. LHR’s last submission speaks to a just and equitable remedy that may possibly be ordered in this case. Such a remedy would set Directive 21 aside on the basis that it be declared inconsistent with the Constitution and invalid.


 For more information, please contact:

Kayan Leung                                                                Carol Mohlahla

Attorney                                                                      Media and Communications

Lawyers for Human Rights                                         079 238 9826

011 339 1960