The department of home affairs (DHA) will not challenge a court order granted in favour of 22 Afghanis, giving them a go-ahead to apply for asylum transit visas that could see them enter SA.
The North Gauteng High Court in Pretoria judgement delivered on Tuesday confirmed a previous court ruling against the department in January which the government opposed. The ruling, however, does not allow the 22 men to gain an automatic entry into the SA.
They are required to file applications with the department and these will verify their authenticity before granting them entry into SA. In addition, the department would have to use its discretion on whether they should be allowed into the country.
“On a prim facie basis they do face imminent danger and fear of deportation to Afghanistan. Their reliance on a warrant of arrest and fear of death is admissible in their circumstances to acquire an asylum transit visa. The discretion to be exercised whether they are granted asylum status is still to be decided by the refugee reaction officer. Further, authentication of their foreign documents can be done at that stage.
The judgment comes after the high court on February 17 granted an order after the lawyers went to the court, contending that the 22 faced threats by the Taliban government in Afghanistan. The Taliban took over Afghanistan last year.
The department argued that the February 17 order granted in favour of the 22 men, who are represented by a US NGO, was based on the strength of an unauthenticated document written in Arabic language which was not translated to the court.
The department argued that the applicants were in possession of a double entry Zimbabwean visa that authorised them to reside in the country where they already had protection and there was no threat of persecution and deportation back to Afghanistan by the Zimbabwean government.
However, the answering affidavit said that on February 18 the 22 were handed over to the Zimbabwean immigration services and faced arrest if they refused to leave the country.
“Facing the threat of deportation by the Zimbabwean officials on 19 February 2023 they were urgently assisted by the Zambian government with a 30-day visa stay in Zambia awaiting entry into [SA] to seek asylum,” read the judgment.
The department said in a media release: “The DHA will abide by the ruling of the court and will take all necessary steps to give effect to the ruling. The DHA will deal with the asylum applications during the asylum process. The decision to abide shows that the DHA respects the rule of law. However, this should not be interpreted as opening floodgates for spurious asylum claims. The DHA will not hesitate to fight the cases in court as it has done in this instance.”
Court rules 22 Afghanis can apply for asylum transit visas
Image: Freddy Mavunda
The department of home affairs (DHA) will not challenge a court order granted in favour of 22 Afghanis, giving them a go-ahead to apply for asylum transit visas that could see them enter SA.
The North Gauteng High Court in Pretoria judgement delivered on Tuesday confirmed a previous court ruling against the department in January which the government opposed. The ruling, however, does not allow the 22 men to gain an automatic entry into the SA.
They are required to file applications with the department and these will verify their authenticity before granting them entry into SA. In addition, the department would have to use its discretion on whether they should be allowed into the country.
“On a prim facie basis they do face imminent danger and fear of deportation to Afghanistan. Their reliance on a warrant of arrest and fear of death is admissible in their circumstances to acquire an asylum transit visa. The discretion to be exercised whether they are granted asylum status is still to be decided by the refugee reaction officer. Further, authentication of their foreign documents can be done at that stage.
The judgment comes after the high court on February 17 granted an order after the lawyers went to the court, contending that the 22 faced threats by the Taliban government in Afghanistan. The Taliban took over Afghanistan last year.
The department argued that the February 17 order granted in favour of the 22 men, who are represented by a US NGO, was based on the strength of an unauthenticated document written in Arabic language which was not translated to the court.
The department argued that the applicants were in possession of a double entry Zimbabwean visa that authorised them to reside in the country where they already had protection and there was no threat of persecution and deportation back to Afghanistan by the Zimbabwean government.
However, the answering affidavit said that on February 18 the 22 were handed over to the Zimbabwean immigration services and faced arrest if they refused to leave the country.
“Facing the threat of deportation by the Zimbabwean officials on 19 February 2023 they were urgently assisted by the Zambian government with a 30-day visa stay in Zambia awaiting entry into [SA] to seek asylum,” read the judgment.
The department said in a media release: “The DHA will abide by the ruling of the court and will take all necessary steps to give effect to the ruling. The DHA will deal with the asylum applications during the asylum process. The decision to abide shows that the DHA respects the rule of law. However, this should not be interpreted as opening floodgates for spurious asylum claims. The DHA will not hesitate to fight the cases in court as it has done in this instance.”
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