Asylum seekers stifled by home affairs stance
Pakistani sheep shearer has critical skill but is not allowed to work in SA
THOUSANDS of asylum seekers are living in limbo in South Africa because they are unable to go home and are banned from applying for critical skills visas or permanent residence permits.
And a proposed new law will severely restrict their right to work, despite a pledge to the contrary by President Jacob Zuma at the UN last week.
A judge of the High Court in Cape Town was scathing in a judgment last week about the home affairs ban on failed asylum seekers applying for other permits. But the department has asked for leave to appeal against his order scrapping it, and the dispute is set to go to the Constitutional Court.
Meanwhile, Pakistani sheep shearer Jabbar Ahmed and others like him have nowhere to turn.
PAKISTANI sheep shearer Jabbar Ahmed thought he would be able to use his skills and contribute to the economy when he sought asylum in South Africa five years ago.
But the 21-year-old’s future hangs in the balance. He and other asylum seekers are embroiled in a legal battle with the Department of Home Affairs that could end up in the Constitutional Court.
The bone of contention is a directive issued in February by Department of Home Affairs director-general Mkuseli Apleni, which excludes failed asylum seekers from applying for temporary residence permits.
Litigation ensued after the department rejected Ahmed’s application for a critical skills visa.
Immigration regulations list sheep shearing as one of the skills that entitle foreigners to be considered for a “critical skills visa or permanent residence permit”.
Ahmed’s appeal against the department’s refusal to grant him refugee status is pending before the Refugee Appeal Board, and he successfully appealed to the High Court in Cape Town last week against Apleni’s directive.
Cape Town immigration lawyer Tashriq Ahmed, representing three asylum seekers whose applications have been rejected, including the sheep shearer, successfully argued that the directive be set aside.
It was irrational, unconstitutional and contravened another court order directing home affairs officials to “accept applications for visas or permanent residence permits from foreigners even though they might be asylum seekers whose applications for refugee status are still pending”.
Acting Judge Mark Sher found that Apleni acted “arbitrarily and irrationally” in issuing the directive and ordered the department to pay costs and to consider the asylum seekers’ permit applications.
But Ahmed’s joy was shortlived. This week, home affairs lodged an application for leave to appeal to the full bench of the court or to the Supreme Court of Appeal.
Ahmed told the Sunday Times that all he wanted was legal status and to do what he loved.
“There were a lot of problems in my country when I fled to South Africa in 2011,” he said.
“I come from an area close to the Indian border which was plagued by terrorist attacks.
“I love Cape Town. It is a beautiful city, I feel safe here and I want to work legally. I love sheep shearing, it is my passion. I am frustrated by what is happening, my life is in suspense.”
Ahmed said he had received many job offers, but the lack of a permit was hindering him.
The other asylum seekers who took on home affairs were Kuzikesa Swinda, an information technology specialist from the Democratic Republic of the Congo, and Arifa Fahme from India.
Swinda also applied for a critical skills visa but his application was also rejected pending his asylum claim, which is before the Refugee Appeal Board. Fahme has a five-year general work permit, expiring in 2020, which entitles him to work as a manager in a shop in Piketberg.
The department rejected his wife’s application for asylum. She then applied for a visitor’s permit to be able to live with her husband and four children. But VFS Global, an agent for the department, rejected her application based on Apleni’s directive.
Lawyer Tashriq Ahmed said litigating against the department had drained his resources as most of the legal costs came out of his pocket, although he was helped by the Forum of Immigration Practitioners of South Africa. But he vowed to fight all the way to the Constitutional Court.
He is planning a stand-up comedy show to raise funds, and intends approaching NGOs and other concerned lawyers.
“We are not going to stop. We are going to take this fight all the way to the Constitutional Court,” said Ahmed.
“The directive is unconstitutional because a woman cannot be with her husband at the moment. If she gets deported it is against the constitution and her dignity is impaired.
“[Ahmed’s] dignity is impaired because he has got a skill. He applied for [a critical skills visa] and it should be granted,” said the lawyer.