This article describes the adoption route in SA Source:
For some couples, having a baby is as easy as putting on some cool jazz, opening a bottle of bubbly, and … well, you know how that story ends. Unfortunately Mother Nature isn’t equally generous when she hands out the fruits of fertility, and many of the couples who can’t have their own children try to adopt them instead. Adoption is also a route that many gay couples opt for.
But the route to adoption is often a long and frustrating one to follow. In many cases there’s more red tape involved than if you were exporting a white rhino out of Africa. But adopting a child can be one of the most amazing and rewarding journey’s of one’s life.

Adoption and the law
The adoption process is regulated in South Africa by the Child Care Act. Adoption is the legal process whereby the existing parental authority a mother and/or father has over a child is terminated and awarded to the new adoptive parent/s. After the adoption process is complete, the adopted child is, for all legal purposes, the child of the adoptive parent.
Only the children’s court in the district where the child lives has the power to grant an adoption order. It’s important to understand that an informal agreement by a child’s parents to place him or her in the custody of another person is not the same as an adoption.

Who can adopt?
The Child Care Act allows a child to be adopted by:
1. a husband and wife jointly
2. two members of a permanent same-sex life partnership jointly
3. a widower or widow or an unmarried or divorced person
4. the spouse of a person who has children from a previous relationship.

‘Marriage’ does not only mean marriages formalised according to South African civil law, but also includes customary marriage and marriage concluded in accordance with certain religious laws (for example Muslim marriages).
Since 2002 it has been possible for same-sex couples to jointly adopt children.
When a child is adopted by a parent’s spouse or same-sex life partner, it follows that the ‘original’ parent and the ‘new’ parent are then both the child’s legal parents.

The court’s considerations
Going through the adoption process can be very scary. You have visions of social workers interviewing your high school teachers to find out if you secretly smoked behind the school gym and if you were sociable enough. But the truth is that it doesn’t matter if you were a shining star or the class clown. At the end of the day, it’s all about the best interests of the child. This is the most important factor in granting an adoption order, so lay your fears to rest, and have a look at the following requirements:

1. The court must consider the religious and cultural background of the child and of his or her parents, and compare it with that of the person or couple who want to adopt the child. However, differences in religious or cultural background do not exclude the possibility of adoption. An exact correlation is not one of the requirements for adopting a child. The older the child, the more weight these factors carry, as the child is more likely to have identified with a particular religion or culture. Since the Child Care Act was amended in 1991, the race of the child and of the adoptive parents is no longer a factor to be considered.

2. The court must consider the recommendations set out in the social worker’s report. The social worker must be objective (so, no – they don’t accept bribes) and give a motivated recommendation in his or her report. The report has to include the following: 1. details of the religious and cultural background of the child, his or her parents, and the adoptive parents 2. an account of the suitability of the adoptive parents
3. details of the citizenship of the adoptive parents

4. details regarding consent by the child, the biological parents and/or foster parents (where relevant).

5. Information about any counseling that may have been given

6. A statement of all money paid by the person wanting to adopt, such as attorney fees and all other costs incurred with a view to the proposed adoption; this includes the cost of caring for the child, such as medical expenses, housing, food, clothing, travel expenses, and other costs.
Unless the adoptive parents consent to it, their identity and address may not be revealed in the social worker’s report.

3. The court must be satisfied that the person who wants to adopt is qualified to do so in terms of the Act. The person must also have a good reputation, and be capable of looking after a child properly, seeing to his or her education, and giving financial support.

4. The court must be satisfied that the biological parents have given the necessary consent (where relevant).

5. The court must also be satisfied that, in the case of a child aged ten or over, the child has consented to the adoption.

6. Where applicable, the child’s foster parent must have provided a statement confirming that he or she does not wish to adopt the child. (This can be done away with if the foster parent refuses to give the statement within one month after being called to do so.)

Who must consent to an adoption?
If a child is ten or older, his or her consent to adoption is required. It is the duty of the court to make sure that the child understands the nature and impact of giving consent. The child can withdraw the consent in writing at any time before the adoption order is granted.
Where a child is born from a marriage, both the biological mother and father must give their written consent before the child can be adopted by someone else.

If a child is born out of wedlock (meaning that the child’s parents were not married to each other at the time of his or her conception or birth, or at any time thereafter), the mother needs to give her consent to the adoption. (Even if the mother is under the age of 21, she doesn’t need to be assisted by one of her parents.) The exception to this is when the biological father has acknowledged in writing that he is the father of the child, and has made his identity and whereabouts known. In such cases, the father’s consent is also needed.

Where a second parent’s consent is needed but he or she is not available to give it (or simply has not consented), or there are grounds for doing away with his or her consent, a legal notice will be served on him or her, provided that this parent’s whereabouts are known. The notice informs the parent that consent has been given by the other parent, and that he or she now has the opportunity to give or withhold consent. The notice also tells the parent that he or she can give reasons as to why his or her consent should not be done away with.

In all the cases, it is not necessary to serve a notice if the parent’s whereabouts are not known.
After giving written consent, a parent does have time to reconsider the decision: he or she can withdraw that consent within 60 days of giving it. No court order may be made during that period.

WHEN IS CONSENT NOT NEEDED?
There are several instances when the law can do away with the need for biological parents to consent to their child’s adoption. This drastic measure can be taken when one of the following has happened:
1. The parent has failed to acknowledge that he is the child’s natural father, or has failed to carry out his duties as a parent (for instance, has not paid maintenance).

2. The child was conceived in an incestuous relationship between the father and mother.

3. The father has been convicted of rape or assault of the mother, or has been found after a court enquiry to have probably raped or assaulted the mother.

4. The parent/s failed to respond within 14 days to a legal notice of adoption.

5. The parent/s abused the child physically, emotionally, or sexually.

6. The parent/s have caused or contributed to the abduction or sexual exploitations of the child.

7. The parent/s have deserted the child, or it is not known where they are.

8. A parent is certified as mentally ill.

9. Consent is being withheld unreasonably.

How does the adoption procedure work?
So now you have a child who you want to adopt … what’s next?
As we’ve said, only the children’s court in the district where the child lives (where his or her address is) has the power to grant an adoption order. Every magistrate’s court is also the children’s court for its area.
If you want to adopt a child you must complete the relevant application form, which you can get from the clerk of the children’s court. Your application must be accompanied by a certified copy of the child’s birth certificate or identity document (ID), a copy of your ID, and a copy of the social worker’s report stating that you are a suitable candidate. If there’s a foster parent involved, a statement confirming that he or she does not wish to adopt the child is also required.

A widow, widower, or unmarried or divorced person who wants to adopt a child must apply in writing to the Minister of Welfare and Population Development for consent. The Minister’s decision will be communicated to the court.
One cannot start the formal procedure of adopting a baby and becoming that baby’s legal parent if the baby has not yet been born and identified, and you have not yet received the birth certificate to submit along with your application to adopt. The whole process of finding a suitable baby to adopt (before going to court to formally adopt the child) is an entirely separate issue, one that’s not relevant to the discussion regarding the law when adopting a child. The agency through which you adopt your child will help you with this, and tell you exactly how their process works and when they will consider you.

THE TWO WAYS OF GRANTING AN ADOPTION ORDER Proceedings without a hearing
If the court is satisfied that all the requirements as set out above have been met, and no one has opposed the application, the adoption order is granted without a court hearing. The court’s decision is based on the written application and the social worker’s report. This is by far the most common procedure.

Proceedings with a hearing
A hearing is compulsory when someone opposes the adoption, or when the court cannot decide solely on the strength of the social worker’s report. In such a case, the court will set a date for the hearing, and a notice will be served on each prospective adoptive parent, with an instruction to attend. A person who wishes to adopt has the same rights as a person in a civil case, and can examine witnesses, give evidence, and address the court. The natural parents are not entitled to attend the hearing unless the Commissioner has given special permission (which would be based on the best interests of the child).

AFTER THE HEARING
Once an adoption order has been issued (i.e. the court has agreed to the adoption in writing), it will be forwarded to the Registrar of Adoptions for registration. Records of the adoption proceedings must be kept by the clerk of the court as well as by the Registrar. The child will get the surname of the adoptive parents, and a new birth certificate can be issued. It is, however, possible for the child to keep his or her original surname. An appeal against the granting of the adoption order, or against a refusal to grant it can be brought to the High Court by a child’s natural parent or parents, or by the parents wanting to adopt. If an adoption order is not granted, the child must be returned to the care of his or her parent or guardian, provided that this is in the child’s interests.

Rescission (cancellation) of the adoption order
Biological parents or guardians of the child may apply for an adoption order to be revoked or cancelled, on the grounds that their consent to the adoption was not obtained as required by law. In such cases, the application must be made within six months of a parent or guardian becoming aware of the adoption order, but it must be no later than two years from the date of the order. An application to cancel can also be made on the grounds that the adoption is harmful to the child. In this case, the application can be made within two years of the date when the adoption order was given.

An adoptive parent may apply to have the adoption order cancelled on the grounds that the adoption was brought about by fraud or misrepresentation, or that the child is mentally ill and was mentally ill at the time of the order, or that the child suffered from a serious congenital disorder or injury at the time when the adoption order was made. (The adoptive parents must have been ignorant of this at the time of adoption). The application must be made within six months of the date when the applicant became aware of the grounds for cancellation.
All the people who are affected or involved must be informed about the application for the cancellation, and the court must see to it that the legal requirements (mentioned above) have been met. Anyone who is relevant to the case may be heard in court. After considering all the evidence, the court decides whether or not to cancel the adoption order. If the adoption is cancelled, the child will revert to the position in which he or she would have been if no order of adoption had been made in the first case.

Disclosure of information
The records of adoption proceedings can be viewed at the office of the Registrar of Adoptions. This can be done by an adoptive parent from the date on which the adopted child reaches the age of 18, and by the adopted child from the date on which he or she turns 21. The records can also be seen by a biological parent or a previous adoptive parent, provided there is written consent from the adoptive parent and the adopted child; this is allowed from the date on which the child reaches the age of 21. The Registrar may, for good reasons, refuse a person access to the adoption records. If a request to view the records is refused, an appeal can be made to the Minister for Welfare and Population Development.

How can we help you?
Please email us to info@samigration.com
Whatsapp message us on: +27 82 373 8415

Where are you now?
Check our website : www.samigration.com

Please rate us by clinking on this links :
Sa Migration Visas
https://g.page/SAMigration?gm

Nearly 42,000 Kuwaitis have been stripped of their nationality in just six months and in defiance of international law. Launched under the increasingly authoritarian rule of Kuwait's new monarch, Emir Mishal Al-Ahmad Al-Jaber Al-Sabah, the policy claims to target foreigners who illegally obtained Kuwaiti citizenship – but naturalised citizens and political opponents are getting caught up in the campaign.
Kuwait has taken a distinctly more authoritarian direction since the accession of the new monarch, 84-year-old Emir Mishal Al-Ahmad Al-Jaber Al-Sabah, in December 2023.

Asserting that he would not allow democracy “to be exploited to destroy the state”, the emir suspended parliament on May 10 of last year and announced a revision of the constitution with the aim of ending political gridlock, which he claims has paralysed Kuwait for decades.
Several people who criticised this initiative were arrested, and members of parliament were prosecuted in a wave of repression denounced by Amnesty International.

Nearly 42,000 Kuwaiti nationals have been stripped of their nationality since September, a radical policy shift for the Gulf country. Revocation of citizenship had previously been used in Kuwait, as in other Gulf monarchies, only sporadically and following court rulings, sometimes against political opponents or those accused of terrorism like the detainees held at the US base in Guantanamo, Cuba.
The enactment in December of a legislative amendment authorising forfeiture of citizenship for “‘moral turpitude or dishonesty, or for actions aimed at threatening state security, including criticism of the emir or religious figures”, has broadened the scope for the revocation of citizenship.

A Supreme Committee chaired by the minister of the interior examines cases to establish who has a legal claim to Kuwaiti citizenship. And every week, the names of those stripped of nationality are made public – with anxious Kuwaitis poring over the lists looking for their names or the names of relatives, the Financial Times reported.

Kuwaiti wives
No fewer than 464 citizens were stripped of their nationality in a single day on March 6, including 12 people accused of “illegally” holding dual nationality and 451 said to be guilty of “forgery and fraud”, the Middle East news site Al-Monitor reported.
Kuwait does not allow dual nationality, so those who acquire Kuwaiti citizenship must give up their original nationality.
And these naturalised Kuwaitis have been particularly targeted, notably women who were naturalised after marrying a Kuwaiti. Stripped of their Kuwaiti citizenship, they find themselves stateless and without basic rights – for example, they no longer have access to state health care nor can they renew their children's enrolment in state schools.

Non-Kuwaitis cannot access the generous social welfare benefits offered by this wealthy petro-monarchy, nor can they own land or hold a majority stake in a company. Some who have lost their nationality have reported having their driving licenses invalidated, or found their access to their bank accounts restricted.

“The speed of these measures and the scale of the number of people affected is unprecedented in Kuwait. The government is proceeding in a haphazard manner,” says Claire Beaugrand, a researcher for the National Centre for Scientific Research (CNRS), at Paris Dauphine University-PSL.
Faced with public alarm over the denaturalisation campaign, the government in December tried to moderate its position concerning spouses naturalised after marriage, promising to restore their pensions and social benefits.

‘Stateless overnight’
All levels of society are affected by the new rules on nationality, according to a report in the Financial Times. The British daily describes the story of Faisal, a Kuwaiti businessman, who has been in despair since having his passport confiscated at the airport as he was about to travel. No reason was given, he says. But his father, a naturalised Kuwaiti, was also stripped of his nationality. “They made me stateless overnight,” Faisal said. “Today, all I can think about is leaving and settling in Dubai.”

Another potential victim of these revocations is the political opposition. “Rumour has it in Kuwait that the threat of administrative proceedings against ‘fraudulent’ naturalisations is aimed at intimidating people from tribal backgrounds who formed the breeding ground of the parliamentary opposition, considered by the authorities to be ‘disloyal’,” says Beaugrand.

The revocations are a reminder that there is another category of stateless Kuwaitis, the Bidoon, many of whom are descendants of nomadic tribes. Bidoon, literally “without nationality”, have never been able to prove they are Kuwati nationals and have remained in legal limbo for several generations.

Their applications for citizenship are processed by a specific institution that considers them neither citizens nor legal foreign residents. Because of this unsettled status, they are deprived of the social, political and economic rights accorded to the rest of the population. There are an estimated 100,000 Bidoon in Kuwait.

Xenophobic rhetoric
To justify its campaign against foreign nationals, the government at times uses xenophobic rhetoric mirroring that used by the far right in the US and Europe – notably, warning that foreign criminals are taking advantage of the generous welfare benefits meant for Kuwaitis and should be punished.

Kuwait has been “hijacked” by other nationalities, Interior Minister Sheikh Fahad al-Yousef said on Kuwait’s Alrai TV in March. “I will not mention these nationalities. There are nationalities that are foreign to Kuwaiti society – its social life, language, character and social relations.” Yousef, a member of the royal family, cited the danger of undermining the “authentic nature” of Kuwaiti society and generating “lineage confusion”.
The government has even opened a “hotline” to encourage Kuwaitis to report dual nationals and to denounce those they suspect of procuring false documents in order to obtain nationality.

Kuwait's lagging economy
The government also makes an economic argument to justify its campaign that is sometimes echoed in the media.
“The government and the press describe these measures as a way of reducing state expenditure by reducing the number of citizens benefiting from the generous advantages offered by the Kuwaiti welfare state,” says Beaugrand.
Faced with economic stagnation, the Kuwaiti authorities are worried that they are lagging behind their Gulf neighbours, who are successfully diversifying their economies away from dependence on oil.
“When he came to power, the emir promised to launch economic reforms to boost growth,” notes Beaugrand. But ever since he dissolved parliament, despite promising reforms “we've mostly seen denaturalisations”.

How can we help you?
Please email us to info@samigration.com
Whatsapp message us on: +27 82 373 8415

Where are you now?
Check our website : www.samigration.com

Please rate us by clinking on this links :
Sa Migration Visas
https://g.page/SAMigration?gm

Introduction to Legal Principles
The South African legal system, particularly the South African Citizenship Act of 1995, outlines how citizenship is acquired. A key principle is that a child born in South Africa can become a citizen if one of their parents is a South African citizen at the time of birth. However, changes to the law have created complexities for children born to non-citizen parents. This article explores a recent court case involving a child born to refugee parents, highlighting the legal challenges and the court’s decision to ensure the child’s right to citizenship.

Legal Framework for Citizenship
• Citizenship by Birth: Before 2013, a child born in South Africa could become a citizen if one of their parents had permanent residence. After 2013, citizenship is granted if one parent is a South African citizen at the time of birth.
• Statelessness: The South African Citizenship Act aims to prevent statelessness by providing citizenship to children born in the country who do not have another nationality.
• Refugee Status: Refugees in South Africa face unique challenges in obtaining citizenship for their children, as they cannot easily access services from their country of origin without risking their refugee status.
Case Law: Facts and Court Decision

Background
The case involves a family of refugees from Rwanda living in South Africa. The parents, who are legally recognized refugees, have two daughters. The eldest daughter was born before the 2013 changes to the Citizenship Act and automatically became a South African citizen. However, the youngest daughter, born in 2015, did not qualify for automatic citizenship due to the new requirements.

The Challenge
• Statelessness: The youngest child was stateless because she did not qualify for South African citizenship and could not easily obtain Rwandan citizenship due to her parents’ refugee status.
• Application for Citizenship: The parents applied for South African citizenship for their youngest child, but the application was refused by the Department of Home Affairs, citing that granting citizenship would be contrary to the Citizenship Act.

Court Decision
The High Court of South Africa reviewed the decision and ruled in favour of the applicants. The court declared the Department’s refusal unlawful and ordered that the child be recognized as a South African citizen by birth under Section 2(2) of the Citizenship Act. This section ensures that a child born in South Africa who does not have the citizenship of any other country can become a South African citizen if their birth is registered in accordance with South African law.

Key Points of the Decision
• Prevention of Statelessness: The court emphasized the importance of preventing statelessness, especially for children, as it is constitutionally directed that every child should have a nationality from birth.
• Best Interests of the Child: The court prioritized the best interests of the child, noting that procedural technicalities should not override justice.
• Refugee Status Considerations: The court acknowledged the difficulties faced by refugees in accessing services from their country of origin, which would imperil their status and that of their family.

Conclusion
The court’s decision highlights the importance of ensuring that children have a nationality from birth, as mandated by constitutional principles. It also underscores the challenges faced by refugee families in navigating citizenship laws. The ruling provides a significant precedent for similar cases, emphasizing the need to balance legal technicalities with the best interests of the child and the prevention of statelessness.

How can we help you?
Please email us to info@samigration.com
Whatsapp message us on: +27 82 373 8415

Where are you now?
Check our website : www.samigration.com

Please rate us by clinking on this links :
Sa Migration Visas
https://g.page/SAMigration?gm

The high court in Pretoria, in addressing the issue of a child who had been left stateless, ordered Home Affairs to within three months register her as a citizen of this country
Amendments to the Citizenship Act came under the judicial spotlight after one child born from parents who are legally in the country as refugees after they had fled Rwanda is a citizen of South Africa, while her younger sister, born after amendments, is left stateless.
The youngest child, born in 2015 after a change in the law, does not automatically qualify for citizenship as her elder sister did. In terms of the new law, she can only apply for citizenship here - with no guarantees that she will receive it - after she has turned 18.

Her parents, who have been living in South Africa now for several years, turned to the Gauteng High Court, Pretoria out of desperation as their youngest child has now been left stateless. Home Affairs, which has followed the letter of the law, refused to grant her citizenship.
Judge Anthony Millar, in the opening of his judgment in which he ruled in favour of the parents, remarked that “it is a foundational pillar of our law that every child has the right to a name and nationality from birth".

Prior to January 1, 2013, when the applicant's eldest child was born; in terms of the Citizenship Act, a person born here was a South African citizen by birth if one of the parents were legally here.
Since both parents are refugees here and not citizens, the youngest child finds herself in a situation where she is without South African citizenship conferred on her automatically and to obtain citizenship upon application, would have to wait until she was a major (18) to do so.
Judge Millar questioned that while the status of the parents is that of refugees, and of their eldest child is that of a citizen of the Republic, what then is to become of the youngest child since she does not automatically qualify for South African citizenship, nor that of Rwanda.

Home affairs suggested that she applied for Rwandan citizenship or simply waited until she turned 18 to apply for South African citizenship.
But the judge pointed out that as refugees from Rwanda, the parents can hardly ask that country to grant their daughter citizenship. The choice is an impossible one for the parents, the judge remarked.

He added that because of the change to the Citizenship Act, she is not a citizen in the country of her birth. Only after she turns 18 will she have to apply to be recognised as a refugee in her own name and only thereafter, if her application is granted, will she be able to apply for citizenship of South Africa by way of naturalisation.
“This proposed course of action will only give her a right to apply, and not a vested right as guaranteed by the Constitution. This only serves to perpetuate her current predicament, and she would still have no nationality and remain stateless.”
Judge Millar said in cases such as the present one, “it must not be forgotten that procedure is, but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities".

“It is constitutionally directed that a child is to have a nationality from birth, and it follows axiomatically that it is in the best interests of the child that this is so. In the circumstances, the child is to be declared a citizen of the Republic of South Africa,” Judge Millar said.
He ordered Home Affairs to, within three months, register the child accordingly.

How can we help you?
Please email us to info@samigration.com
Whatsapp message us on: +27 82 373 8415

Where are you now?
Check our website : www.samigration.com

Please rate us by clinking on this links :
Sa Migration Visas
https://g.page/SAMigration?gm

Yes, based on the Immigration Act of 2002, the Refugees Act of 1998, and key legal precedents, an asylum seeker can transition to a mainstream visa (such as a spouse visa) and may, in some cases, hold both statuses. This position was confirmed in the Constitutional Court case of Ahmed v Minister of Home Affairs and further supported by other court decisions.

1. Legal Framework: Immigration Act & Refugees Act
To fully understand why this is possible, we need to examine the key legal provisions in both acts:
🔹 The Refugees Act, 1998 (As Amended)
• The Refugees Act does not prohibit an asylum seeker from applying for a visa under the Immigration Act.
• Section 27 of the Act grants recognized refugees permanent residence after five years, but it does not restrict asylum seekers from seeking other legal pathways.
• Section 22 allows asylum seekers to remain in the country legally while their applications are processed, but it does not prohibit them from applying for other visas.
🔹 The Immigration Act, 2002
• The Immigration Act governs mainstream visas, such as spouse, work, and study visas.
• The Act does not contain any express prohibition preventing an asylum seeker from applying for a mainstream visa.
Prior to legal challenges, Home Affairs routinely rejected applications for mainstream visas from asylum seekers, arguing that asylum seekers were only allowed to remain in South Africa under refugee law. However, the courts have overturned this interpretation.

2.Key Case Law: Ahmed v Minister of Home Affairs
Case Citation: Ahmed v Minister of Home Affairs [2018] ZACC 39
🔹 Facts of the Case
• Ahmed was an asylum seeker in South Africa.
• He attempted to apply for a visa under the Immigration Act but was denied by the Department of Home Affairs (DHA), which argued that asylum seekers must remain within the refugee system and cannot apply for mainstream visas.
• Ahmed challenged this decision in the Constitutional Court.
🔹 The Constitutional Court’s Ruling
The Constitutional Court ruled in Ahmed’s favor, confirming that:
✅ Asylum seekers have the right to apply for mainstream visas under the Immigration Act.
✅ DHA’s policy of rejecting asylum seekers’ applications for mainstream visas was unconstitutional.
✅ There is no legal basis to prohibit an asylum seeker from obtaining a spouse visa, work visa, or study visa.
🔹 Reasoning Behind the Judgment
• The court emphasized that the Immigration Act and the Refugees Act must be read together in a manner that aligns with the constitutional right to dignity and fair administrative justice.
• Nothing in the law prevents asylum seekers from applying for mainstream visas.
• The ruling stopped Home Affairs from blocking asylum seekers from transitioning to other legal statuses.

3 .Additional Supporting Case Law
🔹 Ruta v Minister of Home Affairs [2019] ZACC 36
• The Constitutional Court reaffirmed the right of asylum seekers to seek alternative legal pathways.
• It confirmed that a refugee or asylum seeker should not be unfairly locked into the asylum system if they have a valid reason to transition to a mainstream visa.
🔹 Tewolde v Minister of Home Affairs [2019]
• The court confirmed that asylum seekers can apply for a spouse or work visa if they meet the requirements of the Immigration Act.
• This ruling emphasized that fair administrative action is required when processing applications.

4 .Can an Asylum Seeker Hold Both Asylum Status and a Mainstream Visa?
Yes, based on legal precedents, it is possible in certain situations.
🔹 Key Considerations
1. An asylum seeker can apply for a mainstream visa while still holding an asylum permit.

2. Once a mainstream visa is granted, the asylum permit may no longer be necessary.

3. If the asylum seeker still fears persecution, they can maintain their asylum status while holding a mainstream visa.

4. However, if they voluntarily renounce their asylum claim, they will fall under the Immigration Act rather than the Refugees Act.
Ahmed v Minister of Home Affairs and Ruta v Minister of Home Affairs support the principle that the two legal frameworks are not mutually exclusive, and asylum seekers should be allowed to transition legally.

5 .Why Home Affairs Cannot Block This Process
Despite these legal rulings, Home Affairs has historically attempted to block asylum seekers from obtaining mainstream visas. However, the courts have ruled against this for the following reasons:
🔹 Constitutional Principles
• Right to Dignity & Family Life: Preventing an asylum seeker from applying for a spouse visa violates the right to family unity.
• Fair Administrative Justice: Blanket refusals by Home Affairs violate Section 33 of the Constitution, which guarantees fair administrative action.
• Freedom of Movement & Choice: A person should not be forced to remain in the asylum system if they qualify for another visa category.
🔹 Legal Clarity from the Courts
• The courts have repeatedly ruled that Home Affairs cannot enforce a policy that is not supported by legislation.
• If an asylum seeker meets the requirements of a mainstream visa (e.g., a spouse visa), Home Affairs must process the application fairly.

6 .Conclusion: An Asylum Seeker Can Change to a Mainstream Visa
Based on the Immigration Act, the Refugees Act, and legal precedents, it is clearly possible for an asylum seeker to:
✅ Apply for a mainstream visa such as a spouse, work, or study visa.
✅ Transition out of the asylum system if they qualify for another visa.
✅ Hold both asylum and mainstream status in some cases (e.g., if their asylum claim is still valid).
The Ahmed case and similar rulings confirm that Home Affairs cannot block these applications. Asylum seekers are entitled to fair and lawful immigration pathways like any other foreign national in South Africa.

How can we help you?
Please email us to info@samigration.com
Whatsapp message us on: +27 82 373 8415

Where are you now?
Check our website : www.samigration.com

Please rate us by clinking on this links :
Sa Migration Visas
https://g.page/SAMigration?gm