South Africa: Asylum Application Legal Challenges Leave Migrants in Limbo

• Asylum seekers in South Africa, like Brian from Zimbabwe and João from Mozambique, face severe difficulties due to the inaccessibility of the asylum system.
• The asylum system has been effectively closed to new applicants since January 2020, primarily due to amendments to the Refugees Act.
• All five Refugee Reception Offices in South Africa are closed to newcomers, preventing individuals from formally applying for asylum.
• In September 2024, the Scalabrini Centre of Cape Town secured an interim order protecting individuals who express an intent to apply for asylum from deportation, even without a permit.
• On July 7, the Constitutional Court confirmed a 2025 High Court ruling, addressing the impact of new laws on asylum seekers.

These judicial interventions offer a critical, though partial, safeguard against the immediate threat of deportation for individuals caught in the systemic dysfunction of South Africa's asylum process.

Individuals seeking refuge in South Africa face immense hurdles, as exemplified by the experiences of Brian from Zimbabwe and João from Mozambique. Brian, who arrived in 2022, found employment as a bartender in Summerstrand, Gqeberha, earning R8,000 monthly. However, in June, following a campaign by the anti-immigrant group March and March, his employer demanded a valid permit, leading to his unemployment. He now lives in Kamvelihle with his wife, whose two days of work per week bring in approximately R2,400 monthly.

Brian asserts his eligibility for asylum, citing a well-founded fear of torture and potential arrest by Zimbabwean government officials. He details how these officials seize land from legally resettled farmers without providing reasons or court orders, often using the army to beat people and demolish homes, imprisoning those who resist on fabricated charges. For Brian, claiming asylum is the only viable legal pathway to live and work in South Africa, as work visas are not applicable to his profession; a general work visa requires demonstrating no qualified South African is available, and a critical skills visa is limited to specific occupations not including bartending.

João's plight is similar, having fled political violence in Mozambique after the October 2024 election. He now resides in Motherwell, Gqeberha, where he works with fellow Mozambicans painting houses and churches. He recounts leaving a stable life as a teacher in Tete province, where his family enjoyed a good home and schools, all of which ended when election-related violence erupted, leading to the burning of homes, businesses, and hospitals, and hundreds of deaths. João entered South Africa with a valid passport, which allowed him a 30-day visa-free stay. However, upon its expiration, he was unable to apply for asylum because the country's Refugee Reception Offices (RROs) were closed. Both Brian and João are caught in a legal limbo, unable to obtain necessary documentation and thus vulnerable to arrest and deportation, highlighting the severe South Africa asylum application legal challenges.

The effective closure of South Africa's asylum system to new applicants dates back to January 2020. This significant change was primarily a consequence of amendments to the Refugees Act, which empowered immigration officers to deny entry to asylum seekers who lacked existing documentation to be in the country. This legislative shift created a critical barrier, preventing individuals from even initiating the asylum process.

Under normal circumstances, an asylum seeker should be issued an asylum seeker permit, allowing them to remain in the country while their case is assessed. A Refugee Status Determination Officer at Home Affairs would then evaluate whether the applicant possesses a well-founded fear of persecution based on factors such as race, tribe, religion, gender, nationality, political opinion, or membership of a particular social group, or if they fled events seriously disturbing public order. However, the current reality is that all five of the country's ZA refugee reception offices closure to newcomers means this fundamental first step cannot be taken, leaving countless individuals like Brian and João without any formal means to regularize their status or seek protection.

Amidst these systemic failures, judicial interventions have provided some critical, albeit temporary, relief for asylum seekers. In September 2024, the Scalabrini Centre of Cape Town secured an interim order that prevents the government from deporting individuals who have expressed an intention to apply for asylum, even if they do not possess a valid permit. This ruling offers a vital layer of asylum seeker deportation protection ZA, acknowledging the practical impossibility of obtaining permits through official channels.

Further reinforcing this protection, the Constitutional Court asylum seeker ruling on July 7 of this year confirmed an earlier 2025 High Court ruling. This confirmation addresses the implications of the new laws, specifically the amendments to the Refugees Act that have severely restricted access to the asylum system. These judicial interventions offer a critical, though partial, safeguard against the immediate threat of deportation for individuals caught in the systemic dysfunction of South Africa's asylum process.

The experiences of individuals like Brian and João underscore that the South Africa immigration system broken is not merely an administrative inconvenience but a profound human rights crisis. João poignantly notes the irony of fleeing election-related violence in his home country only to face similar sentiments and harassment in South Africa, which he attributes to upcoming local government elections on November 4. Despite efforts by asylum seekers to explain that they are not taking jobs from South Africans, often engaging in piece jobs and even training locals, the anti-immigrant sentiment appears to worsen.

The inability to access the asylum process leaves vulnerable individuals in a precarious legal limbo, susceptible to exploitation, xenophobia, and the constant threat of arrest and deportation. The ongoing South Africa asylum application legal challenges, stemming from legislative amendments and the closure of essential services, create an environment where the fundamental right to seek asylum is effectively denied. This situation highlights the urgent need for comprehensive solutions to address the systemic barriers preventing asylum seekers from formalizing their status and finding safety within South Africa.

Lawyers advising asylum seekers or those facing deportation in South Africa must be aware of the ongoing systemic barriers to asylum applications, the implications of the Refugees Act amendments, and recent court interventions (like the Constitutional Court's confirmation of a High Court ruling) that provide some protection against deportation for individuals expressing an intent to apply for asylum, despite the closure of Refugee Reception Offices.

Source: Original reporting via GroundUp