Foreign nationals challenge SA Home Affairs residency system in court

A group of 13 foreign nationals has approached the Gauteng High Court in Pretoria seeking to have key aspects of South Africa's permanent residence application system declared unconstitutional, arguing that the current process unfairly excludes vulnerable applicants and creates unlawful barriers to legal residency.

The applicants have cited Home Affairs Minister Leon Schreiber, Director-General Livhuwani Makhode and Acting Police Minister Firoz Cachalia as respondents in the matter, alongside senior immigration officials, the Gauteng provincial office of the Department of Home Affairs, Visa Facilitation Services Global (VFS) South Africa and the manager of the Desmond Tutu Refugee Reception Centre.

The applicants include nationals from Zimbabwe, Mozambique and the Democratic Republic of the Congo who are seeking permanent residence in South Africa.

According to court papers, the group is challenging the constitutionality of the current VFS-administered application process, which requires applicants to use online systems and pay a service fee of R1,750 to secure appointments for the submission of permanent residence applications.

The applicants argue that the process violates constitutional rights to equality, dignity and fair administrative action by creating obstacles that many foreign nationals are unable to overcome.

At the centre of the challenge is the requirement that applicants use electronic systems, internet-based platforms, email communication and telephone services to secure appointments and submit documentation.

The group contends that many foreign nationals do not have reliable access to internet services, computers, smartphones, email facilities or the financial resources necessary to utilise the digital application process.

They argue that these requirements effectively exclude some qualifying applicants from exercising their statutory right to apply for permanent residence.

The applicants have asked the court to determine whether the current system is inconsistent with both the Constitution and the Immigration Act.

In their application, they rely on constitutional provisions guaranteeing equality before the law and protection against unfair discrimination.

They also cite the constitutional right to dignity, arguing that the barriers created by the application process undermine the ability of vulnerable migrants to regularise their status through lawful channels.

A key aspect of the case concerns the R1,750 service fee charged by VFS.

The applicants argue that the fee constitutes an unlawful barrier to accessing the permanent residence application process, particularly for low-income and indigent applicants.

They have asked the court to rule on whether the absence of any mechanism to waive, reduce or exempt vulnerable applicants from paying the fee is unconstitutional.

The group further contends that the Department of Home Affairs has failed to provide a reasonable, accessible and lawful administrative process through which qualifying foreign nationals can exercise rights granted under the Immigration Act.

Among the questions placed before the court is whether Home Affairs has fulfilled its legal obligations to ensure that eligible applicants can meaningfully access the permanent residence system.

As part of the proceedings, the applicants issued a Rule 16A notice on June 10, notifying the public that constitutional issues are at stake in the litigation.

The notice allows interested individuals, organisations and institutions 20 days to apply for permission to participate in the case as friends of the court, known in legal terms as *amicus curiae*.

The case is expected to attract significant attention from migrant rights organisations, legal advocacy groups and immigration policy experts, as its outcome could have broader implications for how South Africa administers immigration and permanent residence applications.

If the applicants succeed, the ruling could compel the Department of Home Affairs to review aspects of its digital application system and fee structure to ensure greater accessibility for foreign nationals seeking to regularise their status in the country.