South Africa is grappling with an asylum crisis that has been fueled by the Department of Home Affairs' (DHA) own making. The crisis came to a head last week when a procedural Constitutional Court judgment regarding asylum seekers led to riots and protests in Durban and Soweto. A deliberate disinformation campaign by some groups claiming that the judgment granted asylum seekers residency, citizenship, or voting rights sparked the xenophobic violence.
The background to the Constitutional Court case dates back to February 2026 when the Scalabrini Centre of Cape Town and Lawyers for Human Rights took the DHA to court to challenge procedural impediments to asylum applicants. The amendment to the Refugee Act requires asylum seekers to obtain a transit visa at a designated port of entry to travel to one of South Africa's five Refugee Reception Offices (RROs). The DHA has effectively disqualified anyone without an asylum transit visa or those who did not meet specific requirements from lodging an asylum application.
Between April 2022 and March 2024, the DHA issued only 91 asylum transit visas, suggesting that immigration officials rarely hand them out. The 2021 case of 22 Afghan nationals being denied entry demonstrates that undocumented asylum seekers are more likely to be turned away at the border. In July, the court decided that blocking asylum applications from being made due to procedural noncompliance was invalid, as it amounts to possible refoulement.
The court found that the "good cause" interviews conducted by the DHA to determine if an applicant has valid reasons for not having a transit visa are invalid. The judgment stated that the Act and regulations have no guidance, creating a real risk of arbitrary and inconsistent decision-making. Refugee bodies have reported that virtually no one "passed" the interview, with a lack of clarity about the criteria for valid reasons.
On September 28, 2026, the DHA issued a directive that all RROs must receive every person who reports in person and indicates an intention to apply for asylum, including disallowing "good cause" interviews or procedural rejections. However, on October 2, the DHA withdrew the directive, citing national interest, security considerations, and impracticality. The RROs are now closed to newcomers, leaving many asylum seekers uncertain about their fate.
The DHA has reported that its RROs were "overwhelmed," but this response lacks nuance around the differences between asylum seekers, refugees, and migrants. South Africa hosts approximately 167,000 refugees and asylum seekers, while there are about 2.4 million international migrants. Many RROs have been closed for new applications for extended periods, including during Covid and due to unlawful closures.
The DHA's 95%-to-100% rejection rate for asylum claims has created a huge backlog of 161,000 asylum appeals. While some may enter the asylum system without a sound claim, the figure is not close to 100%. People with valid claims to asylum in South Africa have been unable to apply for extended periods, and if they do get the chance, their application is likely to be rejected.
Key points
- The DHA's procedural barriers and closed refugee offices have left legitimate asylum applicants unable to seek protection in South Africa.
- The country's asylum system has been marred by a lack of clarity and inconsistent decision-making, leading to a huge backlog of asylum appeals.
- The DHA's response to the crisis has been criticized for lacking nuance and ignoring the fundamental differences between asylum seekers, refugees, and migrants.
