Home Affairs appeal denied
Ruling in favour of couples ‘puts to bed further delays’ by department
ACONSTITUTIONAL Court ruling in favour of foreign couples who sought relief from the Department of Home Affairs’ new immigration laws has paved the way for lawyers to contest the constitutionality of sections of those laws.
On Tuesday, the Constitutional Court told Home Affairs it could not appeal against a Western Cape High Court decision, a move that opens doors for further litigation against sections of the immigration laws that immigration lawyer Craig Smith argues are “unconstitutional.”
Smith represented two couples directly affected by the new regulations that came into effect last May.
Agreeing with a Western Cape High Court decision on Tuesday, the Constitutional Court ruled that Home Affairs’ application for leave to appeal a high court decision granting temporary relief to two couples be dismissed. The relief was granted pending a final determination of the constitutional validity of the new immigration regulations.
The latest court decision follows the legal battles of the families of Louise EgedalJohnson and David Henderson, both of whom are married to South Africans and were declared “undesirable” by Home Affairs.
Danish citizen Egedal-Johnson, married to Brent Johnson and living here, was declared an undesirable person by the department after taking a family holiday to Namibia and trying to come back into the country last May.
About the same time, Zimbabwean David Henderson, who also lives here, was declared “undesirable” after leaving the country to visit Zimbabwe. Both their temporary residence permits had lapsed and because they were declared “undesirable”, they were prevented from getting new permits.
Egedal-Johnson and her 2-year-old son, Samuel, were escorted on to an aircraft to Denmark, leaving her South African husband behind. Henderson was also separated from his wife and two children.
The families turned to the high court, arguing that the regulations were unconstitutional. The court granted an interim order and Egedal-Johnson and Henderson were allowed back into the country.
Smith said the next step would be to challenge a section of the new immigration regulations in court. He said the constitutional court judgment was welcomed and “put to bed further delays” by the department. They could finally get to the “unconstitutionality” of parts of the regulations.
It was the third time the department’s leave to appeal has been dismissed – first in the high court, then the Supreme Court of Appeal, before the Constitutional Court found the department did not meet the requirements necessary for the court to determine an appeal against the granting of temporary relief. “It paves the way for us to get into the business end of the constitutionality of the sections,” Smith said.