Answer to a question from a reader

Home Affairs told me that asylum seekers cannot apply for permanent residence. Doesn't this contradict a Constitutional Court ruling?

The short answer

Asylum seekers (i.e. people who do not hold refugee status) may apply for a residence permit.

The whole question

I am a South African citizen in a relationship with a Pakistani National who has been in possession of an asylum document since 2014.

I was under the impression that asylum seekers, following a Constitutional Court judgment, can now apply for a residence visa/permit. When I contacted Home Affairs, I was told that it's not the case. According to Home Affairs an asylum seeker must hold refugee status.

I was told by an immigration lawyer that there are conditions to these applications. People need to qualify for it. According to the lawyer,  it should be based on either: critical skills/ business/spousal.

Is this true ?

I was informed by VFS that an asylum seeker needs to apply for a waiver before any other applications can be made.

Please, could you kindly assist with relevant information and also maybe someone who could help/advise us on the whole process?

I don't know who/what to believe. What is truth? What is correct process/procedure?

The long answer

Thank you for your email asking about how asylum seekers can apply for temporary or permanent residence.

It is not true that a person applying for a residence permit must hold refugee status. The Constitutional Court ruled that any foreigner, including refugees and asylum seekers, could apply for temporary or permanent residence, and that this could be granted if the person fulfilled the requirements of the Immigration Act. It may be that this ruling has not yet been made clear to all officials in Home Affairs, but VFS Global, the company that processes applications for Home Affairs, has placed a Home Affairs statement acknowledging the Concourt judgement on its website.

It is true that a person applying for temporary residence is required to apply from outside of the country, but this can be waived through an application to Home Affairs. (This is a Waiver of Regulation 9(5)). VFS says that it will immediately accept submissions at all their offices for exemptions from having to apply for temporary residence from outside the country. A person applying for permanent residence can apply from inside the country.

A temporary residence visa includes a study visa, a business visa, a critical skills visa and a spousal visa. All of these will have different qualifications. You can find the list of critical skills online – a very long list – if you look up the Immigration Act. In terms of the spousal or life partner temporary visa, a person must have been living in a proven relationship with a partner for more than two years. In terms of permanent residence applications for spouses or life partners, you must have been in a proven relationship for more than five years, and emotional and financial support must be proved. You may have to be interviewed.

You could ask the following organisations for advice and assistance:

Lawyers for Human Rights (Refugee and Migrant rights Programme (RMRP)) at 011 339 1960

PASSOP at 021 762 0322

Answered on March 26, 2019, 10:03 a.m.

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