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

🔹 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 or whatsapp message me on: +27 82 373 8415, where are you now? check our website : www.samigration.com

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General Work Visa

Under the General Work Visa there are very strict requirements. The South African government, although trying to promote work and trade in South Africa, recognize the need to give South Africans the chance to obtain employment ahead of any foreigner.

You will have to prove that you are the only person who can fill that position and that no other South African can play that role. This is done by placing an advert in a national newspaper advertising the position.

A Department of Labour report would need to be obtained.

You will also need to have a job offer/contract from your future employer.

The most important part of the process is skills assessment by SAQA (South African Qualifications Authority) in SA which evaluates your formal qualifications and compares them to a SA qualification. This process is mandatory and for this we would need your academic transcripts and award diplomas. Note under the regulations provision is made for the recognition of work experience in the absence of formal qualifications and this therefore makes provision recognition of prior work experience (RPL).

This is a paper based system which merely compares the foreign qualifications and arrives at an equivalent qualification in SA, and if qualified in SA then no SAQA needed.

Next your employer has to prove that you are the only person that can fill the position and no other South African can fill that role. This is done by placing an advert in a national newspaper advertising the position.

Please note the work Visa is issued in the name of the employer so the person is tied to the employer. If they change the job they will require a new work Visa.

There is some good news for people who are qualified through work experience only and they can qualify if they don’t require formal qualifications, ie SAQA.

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

Where are you now?
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The Critical Skills Visa South Africa is for skilled workers whose occupation is on the Critical Skills Visa List for South Africa. This list reflects the occupations that are in demand in South Africa.

The newly published "Skills or qualifications determined to be critical for the Republic of South Africa in relation to an application for a Critical Skills Visa or Permanent Residence Visa"

This category of work visa may be issued to an applicant who falls within a specific professional category or specific occupational class determined by the Minister by notice in the Government Gazette. This is done after consultation with the Minister of Labour and the Minister of Trade and Industry.

If an applicant falls within one of the professional categories listed on the critical skills list and also has the appropriate post qualification working experience in that profession then such applicant may qualify to apply for this category of work Visa.

The applicant also needs to where applicable register with the relevant South African professional accreditation body regulating that industry as stipulated by Minister of Home Affairs. Such body must also confirm the applicant’s skills, qualifications and working experience.

Furthermore, such applicant’s qualifications need to be evaluated relevant to a South African level. An applicant for a Critical Skills Visa may enter South Africa on such visa without having secured a job offer first. It is, however, required of the applicant to confirm employment with the Department of Home Affairs within a period of one (1) year upon arrival in South Africa, failing which, the Visa would automatically lapse.

The Critical Skills Work Visa is tied to an individual and not to an employer so under this Visa a person can leave from one employer to the next without obtaining a new work Visa.
www.samigration.com

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


Get More Info By Following Our Page: https://www.youtube.com/@samigration

General Work Visa

Under the General Work Visa there are very strict requirements. The South African government, although trying to promote work and trade in South Africa, recognize the need to give South Africans the chance to obtain employment ahead of any foreigner.

You will have to prove that you are the only person who can fill that position and that no other South African can play that role. This is done by placing an advert in a national newspaper advertising the position.

A Department of Labour report would need to be obtained.

You will also need to have a job offer/contract from your future employer.

The most important part of the process is skills assessment by SAQA (South African Qualifications Authority) in SA which evaluates your formal qualifications and compares them to a SA qualification. This process is mandatory and for this we would need your academic transcripts and award diplomas. Note under the regulations provision is made for the recognition of work experience in the absence of formal qualifications and this therefore makes provision recognition of prior work experience (RPL).

This is a paper based system which merely compares the foreign qualifications and arrives at an equivalent qualification in SA, and if qualified in SA then no SAQA needed.

Next your employer has to prove that you are the only person that can fill the position and no other South African can fill that role. This is done by placing an advert in a national newspaper advertising the position.

Please note the work Visa is issued in the name of the employer so the person is tied to the employer. If they change the job they will require a new work Visa.

There is some good news for people who are qualified through work experience only and they can qualify if they don’t require formal qualifications, ie SAQA.

www.samigration.com

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


Get More Info By Following Our Page: https://www.youtube.com/@samigration

General Work Visa

Under the General Work Visa there are very strict requirements. The South African government, although trying to promote work and trade in South Africa, recognize the need to give South Africans the chance to obtain employment ahead of any foreigner.

You will have to prove that you are the only person who can fill that position and that no other South African can play that role. This is done by placing an advert in a national newspaper advertising the position.

A Department of Labour report would need to be obtained.

You will also need to have a job offer/contract from your future employer.

The most important part of the process is skills assessment by SAQA (South African Qualifications Authority) in SA which evaluates your formal qualifications and compares them to a SA qualification. This process is mandatory and for this we would need your academic transcripts and award diplomas. Note under the regulations provision is made for the recognition of work experience in the absence of formal qualifications and this therefore makes provision recognition of prior work experience (RPL).

This is a paper based system which merely compares the foreign qualifications and arrives at an equivalent qualification in SA, and if qualified in SA then no SAQA needed.

Next your employer has to prove that you are the only person that can fill the position and no other South African can fill that role. This is done by placing an advert in a national newspaper advertising the position.

Please note the work Visa is issued in the name of the employer so the person is tied to the employer. If they change the job they will require a new work Visa.

There is some good news for people who are qualified through work experience only and they can qualify if they don’t require formal qualifications, ie SAQA.

www.samigration.com

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


Get More Info By Following Our Page: https://www.youtube.com/@samigration