Home Affairs drops asylum directive after 24 vehicles torched in Soweto and Durban

Home Affairs has withdrawn a directive meant to put a Constitutional Court judgment on asylum applications into effect, after refugee reception offices were overwhelmed and anti-illegal-immigration protests in Soweto and Durban turned violent.

The department announced the withdrawal on Friday. The directive had been issued on 28 September, days before the unrest. As the Mail & Guardian reported on 9 October, Minister Leon Schreiber defended the reversal in media interviews that day, saying the government had shifted its position because the facts had shifted, and that the court could not have foreseen what its ruling would do to reception centres and the communities around them.

Twenty-four vehicles were set alight on Thursday. Acting national police commissioner Lieutenant General Puleng Dimpane said 10 were torched in Soweto and 14 in Durban. In Orlando West, protesters gathered near a Home Affairs office before moving towards foreign-owned businesses, and police received reports of shots fired towards demonstrators before the vehicles were burned. In Durban, shops were looted and vehicles burnt, and hundreds of asylum seekers waiting outside the refugee reception centre were told to leave because of security concerns.

Three foreign nationals were arrested for allegedly assaulting a protester, an incident police said may have contributed to the unrest. Police reported that calm had returned to both areas by Friday, with officers remaining on alert.

What the court actually ordered

The judgment was delivered on 7 July in litigation brought by the Scalabrini Centre of Cape Town and Lawyers for Human Rights. It dealt with provisions of the Refugees Act that shut asylum seekers out of the application process because they had entered the country irregularly, had not obtained an asylum transit visa, or had missed prescribed reporting deadlines. It requires officials to consider individual claims rather than excluding applicants automatically on procedural grounds.

It does not grant anyone automatic refugee status, citizenship, permanent residence or voting rights. Applicants still have to establish that they qualify for protection, and a rejected claim can still end in deportation after due process. That distinction has been blurred by misinformation circulating online, including claims that the ruling amounted to blanket legalisation of undocumented foreign nationals.

The judgment remains binding. Withdrawing the directive does not undo it.

The department has not said what will apply at refugee reception offices in the meantime, or when replacement instructions will come. Schreiber has said Home Affairs respects the judiciary and remains committed to complying with the court order.

Home Affairs said the 28 September instruction was an operational measure issued by the director-general without the knowledge of Schreiber or any other political office-bearer, and rejected claims that it was politically motivated. The department noted that it had opposed the Constitutional Court case.

The review was already under way before Friday. An inter-ministerial committee on migration met on Wednesday night, and briefing the media on Thursday, its chair, Justice and Constitutional Development Minister Mmamoloko Kubayi, acknowledged that the country’s five refugee reception offices had been overwhelmed. Kubayi said the government respected the judgment but faced serious operational challenges, and that the ruling did not stop the enforcement of immigration laws or the deportation of people who did not qualify for protection.

The committee announced plans to strengthen asylum processing capacity, improve biometric screening, speed up decisions and investigate fraud in the system. It also sought legal advice on how to implement the judgment where compliance would take significant time and resources. Minister in the Presidency Khumbudzo Ntshavheni said on Thursday that government was reviewing the Home Affairs directives to address confusion and overcrowding.

The department has not disclosed whether Schreiber or the inter-ministerial committee requested or approved Friday’s withdrawal.

Five offices, and the queue outside them

South Africa runs five refugee reception offices, and they are the physical bottleneck in this dispute. They are where a claim is lodged, where a biometric record is made and where a decision is eventually handed down, and they have been the point of contact between the state and asylum seekers for years.

That is the pressure Schreiber pointed to when he said the facts had shifted. It is also the pressure that produced Thursday’s crowds, when hundreds of people waiting outside the Durban centre were sent away for their own safety.

No group or individual may enforce immigration law. That authority belongs to the state. Torching a vehicle, looting a shop or blocking access to a reception office is a crime, whether it is described as a protest or as a deadline. The Constitution and the Refugees Act place the processing of claims with officials, and the courts, not with a crowd.

Nobody has been reported as killed in Thursday’s unrest. The damage was to property and to access. Calm returned by Friday, which is the outcome the police deployment was there to produce, and officers stayed on alert afterwards.

The Scalabrini Centre and Lawyers for Human Rights, the two organisations that brought the case, had not issued a publicly available response to the withdrawal at the time of writing.

What is left unresolved is straightforward. The court order stands. The directive that was supposed to carry it out has been pulled. Until a replacement is published, asylum seekers who were excluded from the system on procedural grounds have no clear route to lodge a claim, and the offices that would take those claims are the same offices the department says cannot cope.

Source: Mail & Guardian, Home Affairs withdraws asylum directive as Schreiber defends reversal