Government: Court ruling grants no automatic refugee status
Pretoria briefing calms fears over asylum access and public services
The queues outside Home Affairs offices this week left many South Africans asking whether the country’s borders and public services are now open to anyone who arrives. On Thursday, the Inter-Ministerial Committee (IMC) on Migration answered directly: the Constitutional Court’s July judgment on asylum applications does not hand refugee status or permanent residence to anyone entering the country, and does not legalise unlawful migration.
The clarification followed an urgent IMC meeting on Wednesday night, convened as implementation of the ruling produced a sudden influx of people seeking access to Refugee Reception Offices, with long queues reported outside Home Affairs facilities. At a media briefing in Pretoria, IMC Chairperson and Justice and Constitutional Development Minister Mmamoloko Kubayi acknowledged the anxiety citizens have felt.
“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 judgment itself, handed down in July in the matter of Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, dealt with a narrow but consequential question: who may reach the asylum system at all. The Court declared certain provisions of the Refugees Act unconstitutional because they blocked some people from applying solely on procedural grounds. Those affected 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. Such barriers, the Court found, could exclude people before their claims were ever properly assessed.
In practical terms, the IMC explained, the ruling restores access to the asylum determination process rather than conferring any status. “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,” Kubayi said. Once inside the system, every applicant must still undergo the formal Refugee Status Determination Process under the strict criteria of international and domestic 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,” she said.
The committee framed the decision as a correction of a procedural defect in how applications are initially processed, not an expansion of the substantive requirements for refugee protection. It also stressed that the State’s enforcement powers remain intact. “Government retains its full sovereign right and duty to enforce the Immigration Act,” Kubayi said, noting that people found not to qualify for protection, or who abuse the asylum system, can still face lawful deportation once legal processes are complete.
Meanwhile, 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. 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, and that asylum claims must be properly assessed before anyone who may genuinely require international protection is returned.
The committee also used the briefing to correct misinformation circulating on social media. Contrary to claims that people granted refugee status would acquire voting rights, the IMC stated that refugees do not have the right to vote under South African law. It rejected suggestions that ordinary Home Affairs services for South Africans would be swamped, pointing out that there are only five Refugee Centres in the country.
The IMC, while reaffirming its respect for the Constitutional Court, acknowledged that implementation had created significant operational challenges, driven partly by directives issued by Home Affairs after the judgment and by difficulties in applying the ruling. It welcomed the cooperation between Home Affairs officials and police officers in managing the situation, and said government is working to address the operational implications while ensuring the judgment is implemented. Its core message to the public: access to the asylum system should not be confused with the granting of asylum, and each claim will continue to be assessed individually.
Whether the queues subside as the new process beds in remains to be seen.
Q&A
Does the Constitutional Court's July judgment grant refugee status to anyone entering South Africa?
No. The IMC stated the ruling only requires that individuals claiming asylum be allowed access to the asylum determination process so their claims can be properly assessed. It does not hand refugee status or permanent residence to anyone and does not legalise unlawful migration.
Who was blocked from applying for asylum before the judgment?
Certain provisions of the Refugees Act declared unconstitutional had barred people from applying solely on procedural grounds, including those who entered South Africa irregularly, did not hold an asylum transit visa, or failed to report to a Refugee Reception Office within the prescribed period.
Can people who abuse the asylum system still be deported?
Yes. The government retains its full sovereign right and duty to enforce the Immigration Act, and people found not to qualify for protection, or who abuse the asylum system, can still face lawful deportation once legal processes are complete.
Will refugees get voting rights or overwhelm ordinary Home Affairs services?
No. The IMC rejected claims that refugees would acquire voting rights, stating they do not have the right to vote under South African law. It also noted there are only five Refugee Centres in the country, so ordinary services for South Africans are not expected to be swamped.