The South African government is seeking legal advice on managing asylum applications following a Constitutional Court ruling that has prompted a review of immigration procedures. The ruling requires officials to assess asylum claims without first excluding applicants because they entered the country irregularly or failed to apply within prescribed deadlines. This has led to long queues forming outside refugee reception centres amid misinformation that foreigners are being granted amnesty.
Minister in the Presidency Khumbudzo Ntshavheni said the government is assessing its options to address the judgment's unintended consequences. The department of home affairs will review its instructions to refugee reception centres to prevent confusion, she said during a briefing by the inter-ministerial committee on migration. The government will implement the ruling within its administrative capacity while considering its legal options.
The Constitutional Court ruling, which was made on July 7 in a case brought by the Scalabrini Centre of Cape Town and its trustees, confirmed provisions of the Refugees Act were unconstitutional. The provisions required applicants without valid visas to first satisfy officials they had valid reasons for their circumstances before being allowed to seek asylum. These barriers prevented consideration of whether applicants needed protection and risked returning people to countries where they could face persecution or harm.
The department of home affairs has issued a directive to refugee reception centres in September, following the court ruling. Home affairs said it had opposed the case but was constitutionally obliged to implement the judgment. The department rejected allegations that the changes were initiated by the minister or political parties, or amounted to blanket legalisation of foreigners.
There have been claims that the judgment grants asylum seekers citizenship or provides for the blanket legalisation of foreign nationals, which the government has categorically denied. The Electoral Commission of South Africa has also dismissed claims that asylum seekers can now vote, stating that only South African citizens aged 18 and older who are registered on the voters' roll are eligible.
Ntshavheni said the queues at refugee reception centres gave home affairs an opportunity to establish who qualified to remain in the country. People who did not qualify for asylum or another lawful basis to stay would face removal after being processed, she said. The department had begun revoking asylum or refugee statuses obtained fraudulently after Special Investigating Unit investigations.
The government is considering its options, including possible constitutional amendments, if South Africans believe the constitution does not adequately protect their interests. The department of home affairs will refer what it describes as a co-ordinated disinformation campaign to the Electoral Commission of South Africa under its code on countering disinformation.
Key points
- The government will review its refugee policies after a Constitutional Court ruling caused confusion at reception centres.
- The court ruling requires officials to assess asylum claims without first excluding applicants because they entered the country irregularly or failed to apply within prescribed deadlines.
- The government has denied claims that the judgment grants asylum seekers citizenship or provides for the blanket legalisation of foreign nationals.
