Image: ER Lombard
The Department of Home Affairs has issued a directive to all Refugee Reception Offices to immediately accept and receive anyone who reports in person and indicates an intention to apply for asylum. The department indicates that anyone who entered the country unlawfully through any port of entry and holds no visa should still be assisted in lodging an application.
This simply means that anyone who is in the country illegally cannot be turned away when applying for asylum, an asylum transit visa is no longer required, and the Refugee Reception Offices are compelled to receive and facilitate asylum applications even if there was unlawful entry, unlawful presence, delay or the absence of documentation.
Thulani Mavuso, the acting director general of the Department of Home Affairs, indicated that the department could face an administrative burden, as some individuals may seek to take advantage of the newly opened window that allows undocumented people to apply for asylum.
So, what does the recent development mean for South Africa’s sovereignty and its authority to determine who may enter and remain within its borders? To what extent should foreign nationals or organisations be able to challenge the country’s immigration laws through the courts? More importantly, what are the implications for national security when undocumented foreign nationals are permitted to access the asylum system? At the moment, it is unclear how the state will balance its constitutional and international obligations to protect asylum seekers with its responsibility to safeguard South Africa’s borders and national interests.
This directive falls against the backdrop of the case of Ethiopian national Beneyam Deselegn Ashebo. Ashebo was arrested for unlawfully entering and residing in South Africa, and upon his arrest, he indicated that he had been long seeking asylum with no success due to COVID-19 restrictions and that he entered South Africa illegally from Zimbabwe as a result of fear of persecution in his country.
He subsequently took his case to the Constitutional Court, challenging aspects of the legal framework governing people who enter South Africa illegally but subsequently express an intention to seek asylum. The Constitutional Court ruled in his favour that his detention was unconstitutional and that those who enter the country illegally should be afforded the opportunity to apply for asylum.
Scalabrini Centre of Cape also challenged the Department of Home Affairs over provisions of the Refugee Act that prevented certain people from accessing asylum because they entered South Africa illegally, failed to report within the prescribed period at the Refugee Offices, or lacked asylum transit visa. The Constitutional Court ruled in favour of the NGO and declared some sections of the Refugee Act unconstitutional and invalid, which compels the Department of Home Affairs to adhere to and enforce the Constitutional Court judgment.