Asylum ruling does not open SA’s borders to undocumented migrants, experts say

Legal experts and government have rejected claims that the Constitutional Court’s ruling on asylum applications makes it easier for undocumented foreigners to enter South Africa.

They say the judgment does not legalise irregular migration or grant automatic refugee status.

Instead, they say the July 7 judgment reinforces the right of people seeking international protection to have their asylum claims properly assessed, regardless of certain procedural or technical immigration violations.

The Constitutional Court, in the Scalabrini Centre of Cape Town and Others v Minister of Home Affairs matter, ruled that asylum seekers cannot be barred, detained or deported due to procedural or technical immigration errors, including irregular entry or failure to meet strict reporting deadlines.

Molya Vundamina, project officer of the Migrants’ Rights Unit at the University of Pretoria’s Centre for Human Rights, said the judgment is significant because it reaffirms that access to South Africa’s asylum system cannot be denied solely on the basis of procedural immigration violations.

“Previously, certain provisions of the Refugees Act and its regulations allowed asylum seekers to be prevented from lodging applications if they entered South Africa irregularly, did not possess an asylum transit visa, or failed to report to a refugee reception office within the prescribed period, unless they could provide a satisfactory explanation for their non-compliance,” Vundamina said.

Vundamina said the Constitutional Court ruled these barriers unconstitutional because they prevent genuine asylum seekers from receiving a fair evaluation of their claims.

People fleeing persecution or conflict may not have the opportunity to obtain passports, secure visas or enter through official border posts. International refugee law recognises these circumstances, which is why irregular entry should not, in itself, prevent someone from seeking protection

“This was particularly concerning given South Africa’s constitutional and international obligations, including the principle of non-refoulement, which prohibits returning individuals to countries where they face persecution or other serious harm.”

Vundamina said importantly, the judgment does not create new rights for asylum seekers, nor does it automatically grant refugee status or make irregular entry lawful.

“Rather, it reaffirms existing protections under the constitution and international refugee law.