South Africa's asylum system is facing fresh pressure after the Department of Home Affairs instructed refugee reception offices to receive anyone who reports in person and indicates that they want to apply for asylum, including people who entered the country unlawfully. This move follows a Constitutional Court ruling that certain provisions of the Refugees Act were invalid. The Deputy Director General for Operations at Home Affairs, Thulani Mavuso, warned that the department could now face a significant increase in the number of people seeking to lodge asylum applications.
Under the new instruction, refugee reception offices must receive people who indicate that they want to apply for asylum and assist them with lodging an application. This includes people who entered South Africa unlawfully, entered somewhere other than a port of entry, did not declare an intention to seek asylum at a port of entry, do not hold a visa, or did not report to a refugee reception office within five days of entering the country. Mavuso explained that the change stems from a 2023 Constitutional Court judgment involving an Ethiopian national who had been arrested for unlawful entry and residence in South Africa.
The Constitutional Court ultimately found that a person in such circumstances could not simply be prevented from claiming asylum. A subsequent matter brought against the Home Affairs minister also dealt with provisions of the Refugees Act. Mavuso stated that the invalidity of the provisions was not suspended, meaning it took effect when the judgment was delivered. Previously, a person who had entered South Africa unlawfully would have had to explain why they had entered or remained in the country illegally before proceeding with an asylum application.
With the new changes, asylum seekers will provide the relevant reasons as part of their asylum application, which will then be assessed. Mavuso warned that the change could create significant administrative pressure, particularly because South Africa cannot impose a quota preventing people from lodging asylum applications. He mentioned that the department would have to consider working longer hours and increasing staffing at refugee reception offices, of which there are currently five in the country.
Mavuso expressed concerns that people who know they are not in South Africa because they are seeking protection from persecution could potentially join the queue of genuine asylum seekers, creating administrative delays. He explained that individual circumstances could justify an asylum claim, even where the broader conditions in a particular country were considered stable. However, economic hardship does not in itself qualify someone for asylum, and Mavuso noted that economic migration was prevalent in Southern Africa.
The change does not mean that everyone who applies for asylum will be granted protection. Mavuso stated that asylum applications undergo an assessment process involving interviews and consideration of the circumstances of the individual. Country profiles are also used to help determine whether claims are credible. He cited political persecution as one example of a circumstance that could support an asylum claim and noted that some genuine asylum seekers might not even have travel documents.
Mavuso also addressed other issues, including the first safe country principle, which is currently contained in the government's White Paper, and the impact of an asylum seeker returning to the country they claim they are fleeing. He stated that a person could not claim protection from persecution in a country and then voluntarily return to that same country, as this would affect their right to protection.
Key points
- The department may face a significant increase in asylum applications.
- The new rules follow a Constitutional Court judgment that certain provisions of the Refugees Act were invalid.
- Asylum applications will still undergo an assessment process to determine their credibility.
