By Anita Dangazele
- The Constitutional Court ruled that asylum seekers cannot be turned away for missing paperwork, deadlines, or using unofficial border crossings.
- The ruling does not change the law for undocumented migrants who are not applying for refugee status in South Africa.
South Africa’s highest court ruled on Tuesday, 7 July, that people fleeing persecution cannot be turned away from the asylum system for missing paperwork or deadlines. The ruling does not apply to undocumented migrants who are not seeking asylum in the first place.
The Constitutional Court confirmed a Western Cape High Court finding that struck down parts of the Refugees Act. Those sections had let officials block a person’s asylum claim entirely if they entered the country through an unofficial border post, arrived without documents, or failed to report to a refugee reception office within five days. Judges ruled that every claim must be considered on its own merits before anyone can be refused.
The Scalabrini Centre of Cape Town brought the case. The court also found the old rules unfairly punished children, whose asylum claims often depend entirely on a parent’s case being accepted first, without any separate assessment of the child’s own circumstances.
Judges went further than simply striking down the law. They ordered the Department of Home Affairs to pay the legal costs of the case, and criticised the department’s own lawyers for making unsupported claims during the case about Afghan and Bangladeshi nationals and human trafficking, calling the claims deserving of strong criticism.
An asylum seeker is someone applying for protection because they fear persecution or serious harm if sent back to their home country. This ruling only affects people in that specific process. It does not change anything for undocumented migrants who are in the country without applying for refugee status.
The ruling comes in the same week South African police arrested more than 1,000 people for immigration offences during operations in Free State, Limpopo and Mpumalanga.
Those arrests targeted undocumented migrants, a separate legal category from asylum seekers, and are not affected by this week’s court ruling.
Pictured above: Thousands of Malawian nationals wait in Musina before crossing the Beitbridge Border Post on their journey home.
Image source: File
