Section 8(3) of the Immigration Act [‘the Act’] lays the basis for the appeals with its stipulation that “any decision in terms of this Act [other than a decision refusing admission to the country or declaring a person to be illegal], that materially and adversely affects the rights of any person, shall be communicated to that person . . . and shall be accompanied by the reasons . . . ” Section 8(4) then provides that an applicant aggrieved by a decision contemplated in section 8(3) may appeal that decision to the Director General. Section 8(5) says that the Director General shall consider the application contemplated in s 8(4) whereafter he can confirm, reverse or modify the decision. And then s 8(6) states that a person “aggrieved by a decision of the Director General contemplated in subsection (5)” may apply to the Minister for the review or appeal of that decision.
On the face of it, the Act therefore would seem to allow for a double appeal for any section 8(3) decision.
However in Ncube v Minister of Home Affairs [ECHC case no 2074/08, 8 December 2008] the Court found that there was a critical anomaly in this two-stage appellate mechanism. Pakade J held that the Director General “ . . . is responsible for everything done including any decision taken by the Department. It follows therefore, by common logic, that he cannot review or sit on appeal against his own decision.”
The solution to this conundrum, in the opinion of the Court, is that “[a]ll the administrative decisions taken by the Department of Home Affairs in terms of the Act are taken by the Director General and the internal review or appeal thereon lies to the Minister.” In a judgment refusing an application for leave to appeal [25 June 2009], Pakade J held further that “. . . the Director General is the administrative head of the Department and everybody below him is his assistant in the running of the administration of the Department.” The Court concluded again that “an internal appeal against the decision of the administrative personnel cannot go to the Director General as that is deemed to be his decision. . . . that could never have been the intention of the legislature in enacting section 8(4) . . . The legislature could never have intended to concentrate the powers of administration and appeal to one person. That is an absurdity . . . ”
The Court did not however indicate what it considered the intention of the Legislature to be with regard to section 8(4). On the face of it, in terms of the Ncube judgment, section 8(4) of the Act becomes a dead letter. This has a further potential consequence for the appeal process. The wording of section 8(6) of the Act suggests that the right of appeal to the Minister of Home Affairs only arises where the Director General has exercised his appellate authority in respect of a section 8(3) decision and has rejected the appeal in question.
With the greatest respect, this judgment will inject considerable uncertainty into an appellate process where all too often there is much at stake and very little time to sort out technical details – a person has ten working days to submit the appeal. In addition, the Department is very quick to invoke section 7(2)(a) of PAJA requiring the prior exhaustion of all domestic remedies. But the judgment does identify a significant flaw in the Act that was not resolved as part of the notoriously rushed Immigration Amendment Act, 19 of 2004. In the 2002 Act, almost all decision-making functions, outside of those vested in the Minister, were assigned to “the Department.” The 2004 Amendment Act then changed the phrase “the Department” to read “the Director General” wherever it appeared in the 2002 Act.
If the Court in Ncube is correct then all appeals and reviews have to be directed, at first instance, to the Minister of Home Affairs. On the Ministry’s current workload it can sometimes take many months to just get an acknowledgment of one’s correspondence, much less a substantive response – where delays in excess of twelve months or more are not uncommon. To give him his due, appeals to the Director General are often disposed of considerably – if relatively – faster. It is hard to see how the revised appellate mechanism, as found for in Ncube, could therefore work in practice.
Of course in terms of section 8(3) the Minister may delegate most of the powers conferred on him or her in terms of the Act, to “an officer or category of officers” in the Public Service. But to delegate the section 8(6) function to anyone in the Department itself would then run foul of the Court’s concerns in Ncube because one would still have a junior official being asked to overrule a decision of the Director General.
A possible answer to the difficulty identified by the Court in Ncube is that sections 8(4) and 8(6) remain as a dual appeal mechanism for decisions not taken by the Director General. The reality is that the legislature has in the Act, expressly placed considerable authority in the hands of persons other than the Director General. For example, the power to detain and deport illegal foreigners [section 34(1)], is vested in “immigration officers.”
Those decisions that are taken by the Director General – or those deemed to have been taken by him – must then be taken directly on review to the High Court just as one would have to with decisions taken directly by the Minister. But this would be massively expensive and cannot auger well for the already overstretched court administration, especially in Gauteng where immigration-related cases occur on an increasingly regular basis.
But even this option has the difficulty that appeals against extremely serious decisions such as deportations would then lie to the Director General with a further appeal to the Minister whereas appeals on relatively minor issues such as the conditions subject to which a visitor permit is issued, would have to go to the Minister directly. All temporary and permanent residence permits are issued by the Director General or his delegate. This use of the Minister’s time would also therefore appear to be illogical.
A related consideration arises from Clause (l) of the Preamble to the Act [which states that “immigration control is [to be] performed within the highest applicable standards of human rights protection”] as read with subsections 8(3) and (4) of the Act. In terms of these provisions, the overall policy of the Act would appear to have been to allow for a double appeal process for all section 8(3) decisions which would then be denied to a whole category of affected decisions on the basis of the Ncube ruling.
A further consideration is that, as a fact, appeals submitted to the Director General in terms of section 8(4) of the Act can and do succeed (sometimes) precisely because there is, or there is supposed to be, a considered re-think of the matter as it makes its way from the decision-maker through different levels of officials to the Director General.
But the concerns above aside, the Court in Ncube has, with respect, flagged the need for a careful re-assessment by the Legislature, as guided by the Courts and stakeholder groups, of a critical aspect of the Immigration Act