South Africa’s Department of Home Affairs has withdrawn a directive governing the intake of asylum-seeker applications after its implementation overwhelmed refugee reception offices and raised public-safety concerns, but the government says it will develop a new approach to comply with a Constitutional Court ruling.
The department’s director-general withdrew the directive on October 9, less than two weeks after it was issued on September 28. The decision followed the Constitutional Court’s July 7 judgment in the Scalabrini Centre of Cape Town v Minister of Home Affairs case, which found that certain provisions of the Refugees Act restricting access to the asylum system were unconstitutional.
In a statement, the department said the directive had been introduced as an operational measure to implement the court’s order. It said the directive was issued without the knowledge of, or consultation with, the minister or other political office-bearers.
However, the department said implementing the measure had produced serious consequences within days, including overcrowding at refugee reception offices, risks to officials’ safety and threats to public safety and order.
“With these new facts now at hand, the Department will embark on a fresh process to determine the most appropriate operational approach to ensure compliance with the Constitutional Court’s order,” the department said.
The withdrawal does not overturn the court’s judgment. Instead, Home Affairs says it will seek a different way to implement the ruling while addressing the practical difficulties encountered during the initial rollout.
The Constitutional Court’s judgment concerned legal provisions that could prevent asylum seekers from having their claims assessed on their merits because of procedural non-compliance. These included restrictions linked to irregular entry into South Africa or delays in reporting to authorities.
The court confirmed that the challenged provisions were unconstitutional and invalid, finding that procedural failures could not be used to prevent asylum seekers from accessing a substantive assessment of their claims. The ruling also addressed protections against returning people to places where they could face persecution or other serious harm.
The case was brought by the Scalabrini Centre of Cape Town, an organisation that supports migrants and refugees, and concerned the constitutionality of provisions in South Africa’s Refugees Act and related regulations.
The withdrawal also comes amid renewed anti-immigrant unrest in South Africa. On October 8, protests in Johannesburg and Durban turned violent, with vehicles set alight and foreign-owned shops looted, according to Reuters. Police later reported that the situation had stabilised.
The government said misinformation about the Constitutional Court’s ruling had contributed to confusion over its implications. It stressed that the judgment did not automatically grant refugee status, permanent residence or other legal rights to undocumented migrants.
South Africa has faced recurring tensions over immigration, with foreign nationals often blamed for unemployment, crime and pressure on public services. Such claims are frequently disputed, and the recent unrest has raised further concerns about the safety of migrants and the country’s relations with its neighbours.
Home Affairs said the directive was not politically motivated, explaining that it arose from the need to implement a court case that the department had opposed. It reiterated its commitment to the judiciary, the rule of law and a lawful immigration system.
The immediate question is how the government will now process asylum applications in a way that meets the court’s requirements without repeating the operational problems reported at refugee reception offices.
The department has not yet set out the details of its proposed replacement approach. Until it does, the withdrawal leaves the government facing the task of reconciling practical constraints in the asylum system with the court’s requirement that procedural non-compliance must not automatically prevent an asylum claim from being assessed on its merits.
