Authored By: Thandeka Yende
University of South Africa
Introduction
The following case concerns the relationship between refugee and immigration law and the extent to which quasi-legislative instruments issued by the executive are binding in nature. The case established the important of administrative processes and a legal framework complying with the rule of law and principles of legality.
Facts of the Case
The first applicant, Mr Tashriq Ahmed, is an admitted attorney specialising in immigration law. Mr Ahmed represented the second to fourth applicants. The second to fourth applicants- Ms Arifa Musaddik Fahme, Mr Kuzikesa Jules Valery Swinda and Mr Jabbar Ahed- are asylum seekers whose applications for temporary residence permits under the Immigration Act were refused. The case had three amici curiae.
The first respondent is the Minister of Home Affairs (hereafter “the Minister”) and the second respondent is the Director-General of the Department of Home Affairs (hereafter “the Department”) responsible for the administration and implementation of the Immigration Act and the Refugees Act.
In Dabone v Minister of Home Affairs WCHC 7526/03 11 November 2003, the court ordered that the Department of Home Affairs allow asylum seekers under the Refugees Act to apply for one of the categories for a temporary residence permit under the Immigration Act. The Dabone order was further publicised in the Department Circular No 10 of 2008 and was complied with by the Department for a decade.
In 2016, the Department issued Immigration Directive 21 of 2015 (“the Directive”), which advised all immigration officials that the 2008 Circular has been withdrawn and that an asylum seeker permit holder not certified as a refugee under the Refugees Act may not apply for residency under the Immigration Act.
The second to fourth applicants applied for temporary residence visas under various categories under the Immigration Act to maintain familial relations in South Africa, all of which were rejected directly or indirectly in accordance with the Directive.
Upon approaching the High Court, the High Court ruled that the Immigration Act and Refugees Act should not be treated as separate legislative systems and such an interpretation should not prevent asylum seekers from applying for temporary residence while their asylum application is pending. The High Court set aside the Directive.
The respondents applied for leave to appeal at the Supreme Court of Appeal (“SCA”) and the SCA found that not separating the two Acts as a distinctive legislative framework was a flawed interpretation. The SCA repealed the order of the High Court.
Legal Issues
Issue 1: Whether asylum seekers under the Refugee Act may apply for temporary residence under the Immigration Act while their asylum applications remain pending.
Issue 2: Whether the Directive should be set aside.
Arguments Presented
Applicant’s Arguments
The applicants submitted that the Directive unreasonably prevents asylum seekers from applying for residence permits under the Immigration Act. The applicants relied on the repealed predecessor legislation to argue that asylum seekers should enjoy the same opportunity as recognised refugees to apply for residence permits.
The applicants further contended that the Directive is ultra vires. because it introduces a prohibition not contained in the Immigration Act and does not support the intended application of the Immigration Act. It is therefore unlawful and invalid.
The applicants also argue that the Directive unjustifiably limits asylum seekers’ right to dignity and to just administrative actions by preventing the applicants from maintaining family relationships and requiring the applicants to return to their country of origin, or obtain a waiver from the Minister, to proceed with visa applications. Such a requirement would breach South Africa’s commitment to the international law standard of non-refoulement, affirmed in the Saidi case, which prohibits countries from compelling persons to return to a country where their life, physical safety or freedom are threatened.
Respondent’s Arguments
The respondents submit that the Directive is consistent with the legislative and regulatory framework of the Refugee Act and Immigration. They affirm that asylum seekers ought to apply for permits pending the outcome of their applications for asylum. However, the general rule is that applications must be made in the asylum seeker’s country of origin; exceptions exist to apply within South Africa but do not apply to asylum seekers.
The respondents also argue that the Directive is a mere statement of policy based on the Department’s interpretation of the law and that it has no legal force. The Department did not have the power to grant applications-no matter if the Directive is correct or incorrect.
Court’s Reasoning and Analysis
The Court’s legal reasoning was thorough and deconstructed the arguments of both parties to identify inconsistencies and gaps and then align these evaluations with the legal principles of the rule of law, the principle of legality and its constitutional values, particularly regarding the rights of refugees.
The Court relied on the Union of Refugee Women case to establish the contextual significance and sensitivity of the matter, affirming that asylum seekers are a “vulnerable group and their plight calls for compassion”. The Dabone order centred its judgement around the understanding that their plight prevents asylum seekers from being in a position to follow strict provisions of the Immigration Act and Refugees Act in applying for legal status in the country.
In its thorough interpretation the concerned legislation, the Court found that the applicants did not sufficiently challenge the constitutional validity of the legislation and its application to asylum seekers applying for visas under the Immigration Act. However, the Court felt that the Dabone order and the Circular played an important role in mitigating the strict requirements of the legislation for these asylum seekers.
Regarding the nature of the Directive, the Court assessed this according to the principle of legality and the rule of law. The test for the principle of legality was whether the creation of the Directive was anticipated by the legislation. The Court found that although the Directive is an “administrative quasi-legislative” policy that regulates the implementation and application of statutory powers, the Directive was not anticipated and is therefore not binding in nature. The test for the rule of law is whether the publishing of the Directive and the compliance of the Department officials was based on a material error of law. The Court found that the Department officials relied on a policy that lacked promulgation, certainty and did not align with the applicable law; thus, the Court held that the Directive was unlawful and therefore invalid.
The Court further argued that treating the Directive as binding is ultra vires by the respondents. The Directive’s ultra vires nature deprives unsuccessful asylum seekers of any pathway to lawful presence in South Africa by imposing a blanket prohibition on asylum seekers applying for permits under the Immigration Act.
Judgement and Ratio Decidendi
The Decision
The Court set aside the Directive but did not create an exception for applications to be made within the borders of South Africa. The Circular, the Immigration Act and the Regulations of the Immigration Act remain in force.
Immigration Directive 21 of 2015 is inconsistent with the Immigration Act and invalid because it imposes a blanket prohibition on asylum seekers from applying for visas without provision for an exemption application.
Immigration Directive 21 of 2015 is inconsistent with the Immigration Act 13 of 2002 and invalid because it prohibits asylum seekers from applying for permanent residence permits while inside South Africa.
There is no order as to costs.
Ratio Decidendi
The Constitutional Court held that the Immigration Directive 21 of 2015 issued by the Department of Home Affairs is inconsistent with the Constitution, invalid and set aside. The ratio decidendi is that asylum seekers under the Refugees Act may apply for temporary residence visas under the Immigration Act and its Regulations.
Critical Analysis
Significance of the Decision
This judgement ensures that the dignity of asylum seekers and refugees is protected, that the administration of this system is constitutionally valid and that the Court upholds its commitment to its constitutional values and international law standards.
Implications and Impact
Asylum seekers across South Africa will now not face significant barriers when applying for refugee status in the country should their first application fail or be delayed. The matter is utilised in the judgements of several subsequent cases: in the Equal Education case, the Court applied the principle that departmental circulars and directives are not binding in nature when considering the nature and purpose of a departmental SOP; in the Xiuguo case and the Mzalisi case , the Court affirmed the unconstitutionality of Directive 21 in its reasoning regarding applications for asylum and resident permits (Xiuguo); and in Airports Company South Africa SOC Ltd case applied the “error of law” principle when assessing the legality of the provisions of a quasi-legislative document. Evidently, the matter has created an impact in the legal system concerning asylum seeker and refugee administration as well as ensuring the rule of law and principle of legality of administrative actions.
Critical Evaluation
The Court ensures it balances the vulnerability of asylum seekers with systemic compliance. The Court also does well in not ordering that an application for refugee status be done within the borders of South Africa, as this would be an overreach in their own authority as the judicial branch.
However, the decision still leaves the legal and administrative framework for processing asylum seekers and refugees permeable. The judiciary is constitutionally envisaged with the power to ensure that the other branches are fulfilling their roles. Creating a precedent that clearly regulates how and through what means the interests of the legislation can be supported will help close the gaps that allow for the arbitrary practice of public power and thus strengthen the administration of asylum seekers and refugees.
Conclusion
Conclusively, the Ahmed case sets an important standard for the administration of asylum seekers and refugees. By establishing that the publishing and compliance of the Directive did not align with legislation and threatened constitutionally protected rights, and upholding the Dabone order and Circular, the legal system plays an important role in ensuring that administrative actions are in line with the principle of legality and the rule of law. Administrative actions, such as publishing quasi-legislative documents, cannot decide how legislation should be interpreted-that is the power of the courts. The lasting impact of this case will not only be because it gives relief to asylum seekers affected by the Directive but also because it creates an important standard in assessing the practice of public power by the administration. With that said, it creates a path toward establishing legislation that sufficiently ensures the efficient administration of asylum seekers and refugees without needing to continuously rely on quasi-legislative policy documents.
Bibliography
Ahmed and Others v Minister of Home Affairs and Another [2018] (12) BCLR 1451 (CC) (9 October 2018)
Aliens Control Act of 1991
Airports Company South Africa SOC Ltd v Imperial Group Ltd and Others [2020] 2 All SA 1 (SCA) (31 January 2020) (SAFLII, 2020) Airports Company South Africa SOC Ltd v Imperial Group Ltd and Others (1306/18) [2020] ZASCA 2; [2020] 2 All SA 1 (SCA); 2020 (4) SA 17 (SCA) (31 January 2020) accessed 28 July
Constitution of the Republic of South Africa Act 108 of 1996
Dabone v Minister of Home Affairs WCHC 7526/03 11 November 2003 (SAFLII, 2018) Ahmed and Others v Minister of Home Affairs and Another (CCT273/17) [2018] ZACC 39; 2018 (12) BCLR 1451 (CC); 2019 (1) SA 1 (CC) (9 October 2018) accessed 28 July 2026
Department Circular No 10 of 2008 confirming the 11 November 2003 Dabone Court Order WITHDRAWAL OF PASSPORT CONTROL INSTRUCTION NO. 29 OF 2004
Equal Education and Others v Head of Department: WC Education Department and Others [2025] ZAWCHC 557 (28 November 2025) (SAFLII, 2025) Equal Education and Others v Head of Department: WC Education Department and Others (7271/2024) [2025] ZAWCHC 557 (28 November 2025) accessed 28 July 2026
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Mzalisi NO and Others v E O and Another [2019] (3) SA 83 (SCA) (1 October 2019) (SAFLII, 2019) Mzalisi NO and Others v E O and Another (630/2018) [2019] ZASCA 138; 2020 (3) SA 83 (SCA) (1 October 2019) accessed 28 July 2026
Saidi and Others v Minister of Home Affairs and Others [2018] ZACC 9 (24 April 2018)
Union of Refugee Women v Director, Private Security Industry Regulatory Authority [2006] (4) BCLR 339 (CC)
Xiuguo and Another v Director-General of the Department of Home Affairs and Another [2018] ZAGPPHC 508 (5 July 2018) (SAFLII, 2018) Xiuguo and Another v Director-General of the Department of Home Affairs and Another (60392/16) [2018] ZAGPPHC 508 (5 July 2018) accessed 28 July 2026
[1] Ahmed and Others v Minister of Home Affairs and Another [2018] (12) BCLR 1451 (CC) (9 October 2018)
[2] Ahmed v Minister of Home Affairs (n 1); Immigration Act 13 of 2002; Refugees Act 130 of 1998.
[3] Dabone v Minister of Home Affairs WCHC 7526/03 11 November 2003
[4] Department Circular No 10 of 2008 confirming the 11 November 2003 Dabone Court Order WITHDRAWAL OF PASSPORT CONTROL INSTRUCTION NO. 29 OF 2004
[5] Immigration Directive 21 of 2015 “Withdrawal of Circular No. 10 of 2008 confirming the 11 November 2003 Dabone Court Order”
[6] Ahmed v Minister of Home Affairs (n 1)
[7] Ahmed v Minister of Home Affairs (n 1)
[8] Ahmed v Minister of Home Affairs (n 1)
[9] Ahmed v Minister of Home Affairs (n 1) (written submissions)
[10] Ahmed v Minister of Home Affairs (n 1) (written submissions); Aliens Control Act of 1991
[11] Ahmed v Minister of Home Affairs (n 1)
[12] Ahmed v Minister of Home Affairs (n 1) (written submissions) The practice of public power should be to empower legislation, which is to boost economic growth through skilled migration, counter xenophobia and simplify permit procedure.
[13] Ahmed v Minister of Home Affairs (n 1) (written submissions)
[14] Ahmed v Minister of Home Affairs (n 1) (written submissions); Saidi and Others v Minister of Home Affairs and Others [2018] ZACC 9 (24 April 2018) at paras 38
[15] Ahmed v Minister of Home Affairs (n 1) (written submissions)
[16] Ahmed v Minister of Home Affairs (n 1) (written submissions)
[17] Ahmed v Minister of Home Affairs (n 1) (written submissions)
[18] Ahmed v Minister of Home Affairs (n 1) (written submissions)
[19] Ahmed v Minister of Home Affairs (n 1), para 22; Union of Refugee Women v Director, Private Security Industry Regulatory Authority [2006] (4) BCLR 339 (CC)
[20] Ahmed v Minister of Home Affairs (n 1)
[21] Ahmed v Minister of Home Affairs (n 1)
[22] Ahmed v Minister of Home Affairs (n 1)
[23] Ahmed v Minister of Home Affairs (n 1), para 41
[24] Ahmed v Minister of Home Affairs (n 1), para 44
[25] Ahmed v Minister of Home Affairs (n 1), para 45
[26] Ahmed v Minister of Home Affairs (n 1), para 45
[27] Ahmed v Minister of Home Affairs (n 1), para 45
[28] Ahmed v Minister of Home Affairs (n 1), para 67
[29] Ahmed v Minister of Home Affairs (n 1), para 67
[30] Ahmed v Minister of Home Affairs (n 1), para 67
[31] Ahmed v Minister of Home Affairs (n 1), para 67
[32] Equal Education and Others v Head of Department: WC Education Department and Others [2025] ZAWCHC 557 (28 November 2025)
[33] Xiuguo and Another v Director-General of the Department of Home Affairs and Another [2018] ZAGPPHC 508 (5 July 2018)
[34] Mzalisi NO and Others v E O and Another [2019] (3) SA 83 (SCA) (1 October 2019)
[35] Airports Company South Africa SOC Ltd v Imperial Group Ltd and Others [2020] 2 All SA 1 (SCA) (31 January 2020)
[36] Constitution of the Republic of South Africa Act 1996, s 167(4)(a)
