Asylum System Reopens After Concourt Judgment

• South Africa's asylum system has reopened to all new applicants, including those who entered unlawfully or without a visa, following a September 28 Home Affairs circular.
• This change reverses restrictive amendments to the Refugees Act from January 2020 that had barred many from applying for asylum.
• The Constitutional Court confirmed a ruling on July 7, striking down these amendments as they risked returning individuals to danger in violation of international law.
• Initial observations at Refugee Reception Offices show new applicants being processed, but concerns persist regarding inconsistent documentation requirements and the potential for rushed application reviews.
• Advocacy groups are cautiously optimistic, emphasizing the need for fair processing and improved refugee status determination, given the department's history of high rejection rates.

The Constitutional Court's decision highlighted a critical concern: the amendments to the South Africa Refugees Act could lead to individuals being forcibly returned to situations of danger without a proper determination of their refugee status.

South Africa's asylum system has officially reopened its doors to all new applicants, a significant shift that now includes individuals who entered the country without authorization or who lack a valid visa. This change, effective following a Home Affairs circular issued on September 28, mandates that all Refugee Reception Offices (RROs) must accept applications from every new asylum seeker. This marks the first time in several years that such broad access has been granted, reversing a policy that had largely barred new applicants since at least 2020.

For an extended period, particularly from March 2020 to May 2022 when RROs were closed due to COVID-19, the pathway to asylum in South Africa was severely restricted. Prior to this, amendments to the Refugees Act, which came into force in January 2020, had already empowered Home Affairs to exclude individuals from the asylum process before their claims could even be assessed. These provisions specifically targeted those who had not entered the country through an official port of entry or failed to report to a refugee office within five days, unless they could demonstrate "compelling reasons." Similarly, individuals without an asylum transit visa were required to show "good cause" for their unlawful entry before being permitted to apply for asylum. Between April 2022 and March 2024, a mere 91 asylum transit visas were issued, illustrating the stringent nature of these previous restrictions.

The restrictive amendments to the Refugees Act faced a robust legal challenge from the Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights. The organization argued before the Constitutional Court that these provisions had impacted "hundreds of thousands of people," effectively denying them access to a fundamental protection mechanism. On July 7, the Constitutional Court delivered a landmark judgment, affirming a 2025 ruling by the Western Cape High Court that had struck down the contentious provisions.

The Constitutional Court's decision highlighted a critical concern: the amendments to the South Africa Refugees Act could lead to individuals being forcibly returned to situations of danger without a proper determination of their refugee status. Such an outcome, the court found, directly contravenes international law, which prohibits the return of asylum seekers to countries where they face persecution. This ruling underscores the importance of ensuring that the Home Affairs asylum application policy aligns with international human rights standards and provides genuine Refugee Reception Offices access ZA for those seeking protection.

While the reopening of the South Africa asylum system is a welcome development, its practical implementation is already raising questions. A recent visit to the Gqeberha Refugee Reception Office revealed that applicants were being given appointments, with one Bangladeshi national scheduled to return on November 24, and approximately 50 applicants observed inside. However, an anonymous Home Affairs official reportedly advised applicants to bring proof of identification or a letter from human rights lawyers, a directive that appears to contradict the new circular, which explicitly bars officials from refusing an application due to "the absence of documentation."

Community leaders and advocates remain cautiously optimistic. Tibebu Solomon, who led a protest of around 400 asylum seekers outside the Gqeberha office on September 9, expressed that while the department's response is promising, it is not yet a full victory. He emphasized the need for fair access, proper consideration of applications, and decisions made according to law and individual circumstances, voicing concern that applications might be processed too quickly without adequate opportunity for applicants to explain their situations. James Chapman of Scalabrini echoed this sentiment, expressing satisfaction that the department has finally acted on the Scalabrini Centre Concourt judgment. He hopes for a smooth processing of new applicants and that the offices will not be overwhelmed, but also highlighted the department's historical high rejection rates, noting that in 2017, only 479 applicants without family links were granted refugee status at their first interview, compared to 25,713 rejections, raising worries about the quality of future refugee status determinations.

Immigration lawyers should immediately advise clients previously barred from the South African asylum system that they can now submit applications, irrespective of their entry method or visa status. Practitioners must closely monitor Home Affairs' implementation of the new policy, preparing for potential processing backlogs or inconsistencies, and be ready to challenge any unlawful refusals based on documentation or entry method.

Source: Original reporting via GroundUp