There has been growing confusion following a recent Constitutional Court ruling on asylum applications, particularly over whether undocumented foreign nationals can now apply for asylum and what the judgment means for people who entered or remain in South Africa irregularly.
Immigration lawyer Craig Smith said the ruling should not be interpreted as granting legal status to all undocumented migrants. He said the Refugees Act sets out the legal framework for determining who qualifies for refugee protection.
Smith said there is also an important distinction between an asylum seeker and a refugee. An asylum seeker is someone who has applied for protection, while a refugee is someone whose claim has been assessed and who has been formally recognised as meeting the requirements for refugee status.
“A refugee is an asylum seeker who has successfully been recognized as a refugee once they have been vetted and gone through the grounds of refugee status,” Smith said.
He explains that refugee status may apply to people facing persecution or serious threats in their countries of origin, including discrimination based on political or religious beliefs, or situations involving war and public disturbance.
Smith said the Constitutional Court ruling addresses concerns over how Home Affairs handled asylum applications, particularly when people entered the country illegally or failed to comply with certain procedures.
“What Home Affairs were doing is they were using every trick in the book to literally obfuscate and obstruct applications for asylum seekers,” he said.
According to Smith, people without valid immigration status were sometimes turned away before they could even lodge an asylum application. He said the Constitutional Court has now made it clear that this cannot be used as a blanket reason to prevent an asylum claim from being considered.
“If a person is illegal in the country and does not have papers and they can satisfy the grounds under the Refugees Act, they must be adjudicated accordingly,” Smith said.
Smith stresses that applying for asylum is only the beginning of the process. Applicants must still be properly vetted and assessed by Home Affairs, and those who do not meet the requirements can have their applications refused and follow the relevant appeal process.
He said the ruling therefore does not automatically legalise undocumented migrants but ensures that eligible asylum claims can be properly considered under South African law.
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