ConCourt asylum ruling does not grant refugee status, Kubayi says after long Home Affairs queues

The Constitutional Court’s asylum judgment does not grant refugee status or permanent residence automatically to anyone entering South Africa, and it does not legalise unlawful migration, the Inter-Ministerial Committee on Migration said on Thursday.

The committee moved to correct what it described as widespread confusion and misinformation about the July ruling in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, after long queues formed outside Refugee Reception Offices.

Speaking at a media briefing in Pretoria, IMC chairperson and Justice and Constitutional Development Minister Mmamoloko Kubayi said the judgment restores access to the asylum determination process rather than conferring status.

“Importantly, the judgment does not grant refugee status or permanent residence automatically to anyone who enters South Africa, nor does it legalise unlawful migration,” Kubayi said. “It simply requires that individuals claiming asylum be allowed access to the asylum determination process so that their claims can be properly assessed in terms of the law.”

The court declared certain provisions of the Refugees Act unconstitutional because they blocked some people from the asylum system on procedural grounds alone. These included people who had entered South Africa irregularly, did not hold an asylum transit visa, or failed to report to a Refugee Reception Office within the prescribed period. The court found those barriers could exclude people from the asylum process before their claims were properly assessed.

The committee said the decision corrects a procedural defect in how applications are initially processed. It does not expand the substantive requirements for refugee status. Applicants must still go through the formal Refugee Status Determination Process and meet the requirements of South African law.

“Applications that are fraudulent, abusive, unfounded or do not meet the requirements of the Refugees Act will still be rejected through the established legal processes,” Kubayi said.

The IMC said government retains its authority to enforce immigration legislation, and that people found not to qualify for refugee protection, or who abuse the asylum system, can still face lawful deportation once the applicable legal processes are completed.

The committee also addressed two claims it said were circulating on social media. It said people granted refugee status do not acquire the right to vote under South African law. It rejected as untrue the claim that ordinary Home Affairs services for South Africans will be overwhelmed by asylum applications, noting there are only five Refugee Centres in the country.

On the operational strain, the IMC acknowledged that directives issued by Home Affairs after the judgment, together with difficulties in implementing the ruling, contributed to a sudden increase in numbers at Refugee Reception Offices.

“We understand the concerns of citizens when they wake up to long queues outside Home Affairs offices and yes, we confirm that all refugee offices were overwhelmed by the numbers of those coming for applications,” Kubayi said.

The committee said it was concerned about unintended consequences of the judgment and wanted to bring South Africans into confidence about its position and proposed interventions. It acknowledged cooperation between Home Affairs officials and police officers in managing the situation, and said government is working to address the operational implications while implementing the judgment.

The IMC said the judgment reaffirmed South Africa’s constitutional and international obligations, particularly the principle of non-refoulement, which prevents the return of a person to a country where they may face persecution, conflict or serious harm. It said that obligation must be balanced with the state’s responsibility to manage its borders and migration system in accordance with the law, and that asylum claims must be properly assessed before anyone who may genuinely need international protection is returned.

The committee’s position, in its own words, is that access to the asylum system should not be confused with the granting of asylum. South Africa will continue to assess each claim individually, reject applications that do not meet the legal requirements, and enforce immigration laws against those with no lawful basis to remain.

Source: SAnews (South African Government News Agency), ConCourt asylum ruling does not automatically grant refugee status. IMC