Immigration South Africa - Julian Pokroy Immigration Law Attorneys

ASYLUM SEEKERS AND REFUGEES MAY NOW APPLY FOR WORK PERMITS WHILST AWAITING THE OUTCOME OF THEIR ASYLUM DETERMINATION FOR REFUGEE STATUS

In a dramatic new development the situation regarding the Department of Home Affairs stance on accepting applications for temporary and permanent residence under the Immigration Act from asylum seekers and de facto refugees on formal recognition of refugee status has been overturned.

The status quo up to this point has been that asylum seekers and refugees on formal determination of refugee status under the Refugee’s Act number 130 of 1998 could not apply for any of the permits outlined in the Immigration Act number 13 of 2002 (as amended) until such time as they had followed through the path prescribed in the Refugee’s Act for determination of their ultimate refugee status.

In the recent matter brought by the Legal Resources Centre in Cape Town on behalf of Dabone and others versus the Minister of Home Affairs and another (case number 7526/03) an order of Court was issued by the High Court ordering the Minister of Home Affairs to allow asylum seeker permit holders and refugees to apply for temporary and/or permanent residence in terms of the Immigration Act.

It was a further term of the Court order that such asylum seeker permit holders and refugees are no longer required to give up their asylum seeking or refugee status in order to do this.

A further important development arising from the Court order is that possession of a valid passport ceases to be a pre requisite for processing of applications under the Immigration Act by asylum seeker permit holders and/or refugee permit holders and in fact the Department of Home Affairs has been specifically ordered to endorse any temporary or permanent residence papers onto the asylum seeking permits or formal recognition of refugee status certificate as a measure.

A directive has been issued by the Department of Home Affairs which has been despatched to all provincial managers, regional managers, district managers, refugee reception offices to all foreign offices of the Department of Home Affairs informing them that the above provisions will come into effect with immediate effect.

What this in essence means is that asylum seeker permit holders who hold valid asylum seeking permits and persons on formal recognition of refugee status that is current and valid may therefore apply for a work or other permit in the temporary residence category and/or for permanent residence.

It remains a pre requisite however that the applicant for such work permit, other temporary residence permit or permanent residence must also qualify in that category of temporary or permanent residence in order to obtain such permit. The approval of such permit is therefore not an automatic right but a “right” for which each individual applicant must qualify.

By way of an example a person who is an asylum seeker on a valid asylum seeking permit and/or a refugee on formal recognition of refugee status who is in the employ of a company by virtue of the auspice of the Refugees Act and who now wishes to apply for a work permit envisaged in the Immigration Act then, as stated above, they would have to qualify in all respects for that work permit, the prospective employer would have to demonstrate what steps it has taken to secure the services of a foreign national if advertisement is indeed a requirement in that category of work permit and so forth.

The above issues are rather complex and it is suggested that if you are an asylum seeker or formal refugee or an employer wishing to employ such foreign national that you in fact contact our offices for a free assessment of the viability of your proceeding.

In some instances it is conceivable that an asylum seeker or refugee may very well find it more advantageous to remain in the stream under the Refugees Act and we would certainly be able to assist in advising in this regard.

Feel free to visit our website at www.immigr8.co.za for further information.

Should you have any enquiries relating to any of the above then feel free to contact our office or e-mail us on enquiries@immigration.org.za.

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