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This legal development reinforces that the Department of Home Affairs (DHA) is required to accept and process visa applications in strict accordance with the law, without adding unofficial requirements or gatekeeping procedures not provided for in the Immigration Act.
Refusal Set Aside
Aadil Wadee, immigration consultant and admitted attorney at Xpatweb who represented the applicants, explained that the case arose after the South African High Commission in Cameroon refused to accept a Critical Skills Work Visa application and related Visitor’s Visa applications for the applicant’s spouse and minor children. It was refused on the grounds that the applicant could not provide a five-year lease agreement for accommodation in South Africa. “This is not a statutory nor regulatory requirement and the applicant should not have been burdened with such a request. How can it possibly be expected of an applicant to contractually bind himself to a lease agreement with no guarantee that a visa will be successfully issued?” Wadee added.
The court reviewed and set aside the refusal, ordering the mission to accept and adjudicate the Critical Skills Work Visa and accompanying Visitor’s Visa applications for the applicant’s spouse and minor children.
The court order further reads that the applications must be adjudicated within 10 calendar days. Failure to do so, would entitle the applicant to return to court, to initiate Contempt of Court proceedings or alternatively, should the decisions produce a negative outcome, to approach the Court once more to have the decisions reviewed and set aside.
The ruling also requires that, in the event of any refusal, written reasons and the full administrative record must be provided within 10 days. And finally, the Department was ordered to pay the costs of the application.
Alignment with Ministerial Directive issued In October 2024
Wadee notes that the Department’s willingness to settle the matter, which gave rise to the pursuant court order reflects the broader efforts to align visa adjudication with the recently introduced Points-based system (PBS) for Critical Skills and General Work Visas to ensure a more transparent adjudication process with greater predictability for applicants about the criteria.
When the PBS came into effect late in 2024, the Minister issued a directive to address inconsistencies and concerns around unauthorised documentation requests from Foreign Missions.
“The Order confirms that missions are not entitled to refuse to receive applications that are duly submitted in terms of the Act, as they are obliged by the Act to accept the applications. Refusal leads to the officials acting outside of the scope of the empowering provision and thus ultra vires,” says Wadee.
A Turning Point for Visa Applicants
The court order reaffirms that South African missions abroad must act within the bounds of the law and may not introduce administrative barriers or request documentation not required by the Immigration Act. In the past the inconsistencies at certain missions have resulted in undue delays, rejections, and disruptions for skilled professional, families and employers.
Ensuring Compliance Across All Missions
Wadee believes the order sends a clear message that South African missions must align their practices with national legislation and cannot create de facto policies through unofficial documentation demands or procedural refusals.
This also serves as an important reinforcement of applicants’ rights to fair and lawful treatment under administrative justice principles as no consulate or mission may lawfully refuse to accept an application or demand documents beyond what is prescribed by law.
