South Africa Home Affairs: Asylum Directive Withdrawn After ConCourt Ruling

• South Africa's Department of Home Affairs has withdrawn a September directive that allowed asylum seekers to lodge applications.
• The directive, issued without the Minister's knowledge, led to Refugee Reception Offices being overwhelmed and violent protests in Durban and Soweto.
• The Constitutional Court ruled in July that asylum seekers cannot be excluded from the process solely due to irregular entry, lack of transit visa, or delayed reporting.
• The court's ruling does not grant automatic refugee status or permanent residency; all claims must still be assessed.
• The Department of Home Affairs will now develop a new operational approach to comply with the Constitutional Court's order.

The Department of Home Affairs is now tasked with developing a new operational framework to ensure compliance with the Constitutional Court's order while managing the practical challenges of increased applications.

The Department of Home Affairs (DHA) in South Africa has rescinded a directive issued in September that permitted asylum seekers to submit applications. This withdrawal, announced on a Friday, follows a Constitutional Court judgment that prohibited the exclusion of individuals from the asylum process solely due to their irregular entry into the country.

According to a departmental statement, the September directive was implemented without the knowledge of Home Affairs Minister Leon Schreiber. Its immediate consequence was a significant surge in asylum seekers queuing outside Refugee Reception Offices (RROs) across the nation, leading to these facilities becoming overwhelmed within days of the directive's issuance. This situation also resulted in violent protests against the processing of asylum applications in areas such as Durban's CBD and Soweto.

The DHA explicitly refuted social media allegations that the September directive was politically motivated. The department clarified that the directive originated from a Constitutional Court case that the DHA had previously contested. Officials indicated that the operational challenges, including risks to Home Affairs personnel and serious threats to public safety and order, were unforeseen by the Constitutional Court's order. The department is now committed to establishing a new operational framework to effectively comply with the court's ruling.

The Constitutional Court's pivotal ruling, delivered in July, stipulated that asylum seekers cannot be denied the assessment of their claims solely because they entered South Africa irregularly, lacked an asylum transit visa, or failed to report to a Refugee Reception Office within five days. This judgment effectively invalidated specific provisions of the Refugees Act that imposed these barriers, recognizing that such exclusions could lead to individuals being returned to situations of persecution or severe harm without a proper review of their claims.

It is crucial to understand that this Constitutional Court asylum ruling SA does not automatically confer refugee status or permanent residency upon applicants. Individuals are still required to demonstrate that they meet the established criteria for protection under the law. The Inter-Ministerial Committee on Migration further clarified that the ruling does not grant citizenship, voting rights, permanent residence, or refugee status to every applicant.

Claims must still undergo thorough assessment, and those whose applications are unsuccessful will remain subject to the applicable legal processes. The DHA emphasized that individuals found to be misusing the asylum process or failing to satisfy the legal definition of a refugee will continue to face lawful deportation once all due processes have been completed.

The withdrawal of the September directive underscores the complex operational realities faced by the DHA in implementing the Constitutional Court's decision. The overwhelming response at Refugee Reception Offices and the subsequent public safety concerns highlight the need for a carefully considered approach to the DHA asylum seeker policy South Africa. The department had previously struggled with significant backlogs in processing refugee applications following the COVID-19 outbreak in 2020, with many individuals unable to lodge claims even after offices reopened in May 2022.

Misinformation surrounding the ConCourt ruling was identified by the government as a factor fueling tensions and violence. Reports indicated that 14 vehicles were torched in Durban and 10 in Soweto, with foreign-owned shops also being looted. Police deployments were reinforced in the affected areas to manage the unrest.

With the September directive now withdrawn, the Department of Home Affairs is now tasked with developing a new operational framework to ensure compliance with the Constitutional Court's order while managing the practical challenges of increased applications. This fresh process aims to determine the most appropriate method for handling asylum claims in a manner that respects legal mandates and maintains public order.

Lawyers advising asylum seekers or organizations working with refugees must note that while the specific September directive has been withdrawn, the Constitutional Court ruling preventing exclusion based on irregular entry remains operative. Counsel should monitor for the Department of Home Affairs' new operational approach to comply with the ConCourt order, as application procedures are currently in flux and may involve delays or new requirements.

Source: Original reporting via Moneyweb