Home Affairs withdraws asylum directive as court ruling and protests collide

The Department of Home Affairs withdrew a directive on the intake of asylum applications on Friday, two days after demonstrators gathered outside its Refugee Reception Centre on Che Guevara Road in Durban.

As eNCA reported on 9 October, the directive was issued on 28 September and its withdrawal follows a Constitutional Court judgment delivered on 7 July. The court declared certain provisions of the Refugees Act unconstitutional and invalid, and ruled that asylum seekers could not be denied access to the asylum system solely because of procedural failures.

The judgment was followed by protests in Durban and Soweto in which more than 20 vehicles were torched. On 8 October, protesters from the anti-illegal-immigration group March and March Movement chanted slogans outside the Durban reception centre.

Immigration expert Moeketsi Seboko told eNCA that the legal position was settled long before the court ruling. South Africa signed the United Nations Refugee Convention in 1996, whose core principle is non-refoulement. The UNHCR describes that principle as holding that a refugee should not be returned to a country where they face serious threats to their life or freedom, and says the convention sets basic minimum standards for treatment, including rights to housing, work and education while displaced.

“That became law: An asylum seeker who is in South Africa seeking asylum cannot be returned to their country of origin, birth, or nationality,” Seboko said.

He said the Constitutional Court did not create the obligation. “It’s not the Constitutional Court which made this law. The Constitutional Court just interpreted and then instructed Home Affairs to implement the law.”

For an asylum seeker, the practical effect of the withdrawal is that the door to the system stays open while the department works out how to process applications under the corrected law. The alternative, a directive that turned people away at intake, would have left applicants with no lawful route to have a claim assessed, and no protection against removal while that claim was pending.

The reception centres are the front line. Home Affairs runs the country’s Refugee Reception Centres, and they are where a person’s asylum claim is registered, where documentation is issued, and where the record that protects a claimant from deportation begins. Tensions rose at the centres as staff processed new applications, according to eNCA, and the Durban centre has been the site of organised protest.

Section 2 of the Immigration Act codifies the non-refoulement obligation in South African law. That is the provision Seboko points to when he says the government has no choice about implementation. The duty sits with Home Affairs as the administering department, and the court’s order directs it to carry out the law as interpreted.

No group or movement may enforce immigration law. That authority belongs to the state, exercised through Home Affairs, the South African Police Service and the courts. A demonstration outside a reception centre is lawful when it is peaceful. Arson is not, and the torching of vehicles during the protests is a criminal offence.

The withdrawal of the 28 September directive is the department’s own act, and it removes the immediate procedural obstacle the court identified. What remains is the administrative work of intake under the corrected framework, at centres that are already under pressure and in a public climate that has turned volatile.

Source: eNCA, Government bound by law to protect asylum seekers - Immigration expert