South Africa Home Affairs: Asylum Directive Withdrawn After 2 Weeks

• South Africa's Home Affairs Department withdrew a directive on asylum applications on October 9, less than two weeks after its implementation.
• The directive, issued on September 28, aimed to allow asylum applications from individuals previously turned away due to procedural issues, following a Constitutional Court ruling.
• The Constitutional Court had found certain provisions of the Refugees Act unconstitutional, preventing automatic denial of asylum claims based on procedural failures.
• Widespread protests, violence, and public anger over immigration prompted the government to reverse its decision.
• Standard asylum procedures require applicants to report to one of five designated refugee reception offices across the country.

The Constitutional Court ultimately determined that certain sections of the Refugees Act were unconstitutional.

South Africa's Department of Home Affairs recently reversed a significant policy change concerning asylum applications, retracting a directive that had been in effect for less than two weeks. This controversial instruction, issued on September 28, aimed to streamline the initial application process by directing refugee reception offices to accept claims from individuals who might previously have been turned away. Such individuals included those who had entered the country without authorization or who had not met specific paperwork requirements.

However, the implementation of this directive quickly led to unforeseen challenges. Refugee offices experienced an immediate surge in applicants, resulting in extensive queues and operational strain. This situation, combined with existing public anxieties surrounding immigration, ignited widespread protests and acts of violence. Facing mounting pressure from both the public and within government circles, the department announced the withdrawal of the directive on Friday, October 9, marking a swift reversal of its initial stance.

The initial directive from Home Affairs was a direct response to a landmark Constitutional Court judgment delivered on July 7. This ruling stemmed from a case brought by the Scalabrini Centre of Cape Town against the Department of Home Affairs. The Scalabrini Centre, a non-profit organization dedicated to assisting migrants, refugees, and asylum seekers in South Africa, had challenged specific regulations within the Refugees Act.

The core of their challenge focused on provisions that barred certain individuals from applying for asylum, particularly those who had crossed South Africa's borders at unauthorized points or failed to report to a refugee office within a five-day window. The Constitutional Court ultimately determined that certain sections of the Refugees Act were unconstitutional. This pivotal decision meant that individuals could not be automatically denied the opportunity to have their asylum claims considered solely on the basis of procedural non-compliance. Consequently, the September 28 directive was introduced to align departmental practice with this judicial finding, instructing refugee reception offices to accept applications from those presenting themselves in person. It is crucial to note, however, that the court's ruling did not confer automatic refugee status or permanent residency; every application still necessitated a thorough assessment under South African refugee law.

In South Africa, an asylum seeker is defined as an individual who has fled their home country and is seeking protection in another nation due to a well-founded fear of persecution or serious harm. According to guidelines from the United Nations High Commissioner for Refugees (UNHCR), the initial step for anyone seeking asylum in South Africa involves reporting in person to one of the designated refugee reception offices to commence the application process.

South Africa has announced a policy shift to process all new asylum applications only at its borders, with inland Refugee Reception Offices, previously located in Cape Town, Durban, Pretoria, Musina, and Gqeberha, no longer processing new applications. During the application, individuals are required to provide their fingerprints, photographs, and detailed personal information. They must also articulate the reasons for leaving their home country and explain why they are seeking protection within South Africa. Home Affairs officials are then tasked with evaluating these applications to determine eligibility for refugee status. Those who are officially recognized as refugees are granted the right to reside legally in South Africa, enabling them to work, apply for refugee identity documents, and access fundamental healthcare and educational services. These recognized refugees are, however, obligated to adhere to South African laws and ensure their documentation remains valid. While refugee status may eventually lead to eligibility for permanent residence after fulfilling specific legal conditions, including a required period of residency, it does not automatically confer South African citizenship.

The Home Affairs immigration policy reversal was largely driven by intense public backlash. The directive's introduction coincided with a period of heightened public tension and anti-immigrant sentiment regarding undocumented foreign nationals in South Africa. Many residents and anti-immigration groups expressed fears that the new policy would lead to an increase in undocumented individuals remaining in the country.

These anxieties quickly escalated into visible unrest. On Thursday, October 8, significant protests erupted in both Soweto and Durban. In Soweto, demonstrators gathered near a Home Affairs office in Orlando West, where the situation rapidly devolved into violence. Police reports documented severe property damage, including the torching of 10 vehicles in Soweto and an additional 14 in Durban. Furthermore, there were reports of looting targeting various shops, some of which were owned by foreign nationals, and even instances of gunfire during the Soweto protests. Law enforcement officials made three arrests in Durban in connection with the disturbances. The widespread nature and intensity of these protests ultimately compelled the Department of Home Affairs to withdraw the directive, effectively reversing the procedural changes that had been put in place.

Legal practitioners must advise asylum seekers based on the procedural requirements in place before 28 September, as the directive relaxing initial application rules has been withdrawn. This necessitates careful navigation of current departmental practice in light of the Constitutional Court's ruling on the unconstitutionality of certain Refugees Act provisions regarding access to the asylum process.

Source: Original reporting via a news article.