The Inter-Ministerial Committee (IMC) on Migration has moved to quell widespread confusion and misinformation surrounding the Constitutional Court judgment on asylum applications, stressing that the ruling does not automatically grant refugee status or permanent residence to people entering South Africa.
The clarification follows an urgent IMC meeting on Wednesday night after the implementation of the judgment led to an influx of people seeking access to Refugee Reception Offices, with long queues reported outside Home Affairs facilities.
Addressing a media briefing in Pretoria on Thursday, the IMC said the Constitutional Court judgment, handed down in July in the matter of Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, must not be interpreted as legalising unlawful migration or giving people an automatic right to remain in the country.
The Court declared certain provisions of the Refugees Act unconstitutional because they prevented some people from accessing the asylum system solely on procedural grounds. These included people, who had entered South Africa irregularly, did not possess an asylum transit visa or failed to report to a Refugee Reception Office within the prescribed period.
The Court found that such procedural barriers could result in people being excluded from the asylum process before their claims were properly assessed.
The IMC said the judgment, therefore, restores access to the asylum determination process, rather than automatically conferring refugee 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.
“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,” IMC Chairperson, Justice and Constitutional Development Minister Mmamoloko Kubayi, said while delivering the statement.
The IMC stressed that applicants must still undergo 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.
Procedural access does not mean automatic refugee status
The IMC said the Constitutional Court’s decision should be understood as a correction of a procedural barrier, rather than an expansion of the substantive requirements for obtaining refugee status.
“The court’s decision only remedies a procedural defect regarding how applications are initially processed,” the IMC said.
This means that a person cannot be prevented from accessing the asylum process solely because of issues such as the absence of a transit visa or failure to meet a prescribed reporting deadline.
However, once an application is accepted into the system, the applicant must still have their claim assessed.
“The ruling does not grant automatic refugee status or guarantee a right to remain in South Africa indefinitely.
“Every applicant must still subject themselves to the formal Refugee Status Determination Process, where their claims will be thoroughly investigated under the strict criteria set out in international and domestic law,” Kubayi explained.
The IMC said government also retains its authority to enforce immigration legislation.
“Government retains its full sovereign right and duty to enforce the Immigration Act,” Kubayi said.
People who are found not to qualify for refugee protection or who abuse the asylum system can still face lawful deportation once the applicable legal processes have been completed.
Non-refoulement remains central
The committee said the judgment reaffirmed South Africa’s constitutional and international obligations, particularly the principle of non-refoulement.
The principle prevents the return of a person to a country where they may face persecution, conflict or serious harm.
The IMC said this obligation must be balanced with the State’s responsibility to manage its borders and migration system, in accordance with the law.
Government, therefore, remains bound to ensure that asylum claims are properly assessed before a person, who may genuinely require international protection, is returned.
Refugees do not automatically acquire voting rights
The IMC also sought to correct another claim circulating on social media, that people granted refugee status would acquire the right to vote in South Africa.
“Those granted refugee status do not have the right to vote in terms of our laws in the country, contrary to what is being circulated in the country,” the IMC said.
The committee further rejected claims that the judgment means ordinary Home Affairs services for South Africans will be overwhelmed by asylum applications.
“It is not true that Home Affairs offices will not be able to service South Africans because they are flooded by refugee applicants. There are only five Refugees Centres in the country,” the IMC clarified.
Government concerned about unintended consequences
While reaffirming its respect for the Constitutional Court, the IMC acknowledged that the implementation of the judgment had created significant operational challenges.
“We are, however, concerned about certain unintended consequences of this important judgment, and we would like to take this opportunity to bring South Africans into confidence about our current position on the matter and the proposed interventions to alleviate these unintended consequences,” the IMC said.
The committee said directives issued by Home Affairs following the judgment, together with operational difficulties in implementing the ruling, had contributed to the 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 IMC acknowledged the cooperation between Home Affairs officials and police officers in managing the situation.
Government is now working to address the operational implications, while ensuring that the judgment is implemented.
The committee’s message 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 who have no lawful basis to remain in the country. – SAnews.gov.za
