The asylum directive is gone, but the court ruling isn’t. Here’s what happens next

· The South African

Home Affairs has withdrawn its asylum directive, but the legal battle is far from over.

Visit asg-reflektory.pl for more information.

The directive lasted less than two weeks.

In that time, a surge of applicants overwhelmed refugee offices and protests turned violent.

Now, the government is heading back to court.

Here’s what happens next: the government will ask the courts for a supervisory order to oversee how it implements a Constitutional Court ruling on asylum seekers.

A court hearing is set for 29 October.

Until then, the Constitutional Court’s ruling remains binding.

WHAT WAS THE ASYLUM DIRECTIVE?

The directive was issued on 28 September by the director-general of the Department of Home Affairs, Livhuwani Makhode, to all Refugee Reception Offices (RROs).

According to the Department of Home Affairs, it was a purely operational attempt to implement a Constitutional Court judgment.

The department says it was issued without the knowledge of Home Affairs Minister Leon Schreiber or any other political office-bearer.

WHAT DID THE CONSTITUTIONAL COURT RULE?

On 7 July, the Constitutional Court ruled in the case of Scalabrini Centre of Cape Town and Others v Minister of Home Affairs.

The court found that certain parts of the Refugees Act were unconstitutional.

It found that these provisions had unfairly prevented people from accessing the asylum system on procedural grounds alone, such as how they entered the country or failing to meet strict reporting deadlines.

Home Affairs had opposed the case.

DOES THE RULING MAKE ANYONE A REFUGEE?

No.

In a set of frequently asked questions published on Friday, 16 October, the government said the Constitutional Court did not grant refugee status, asylum, permanent residence or citizenship to anyone.

The judgment only relates to access to the asylum application process.

Every application must still go through assessment and verification under the Refugees Act.

Applications that are fraudulent, abusive or unfounded, or that don’t meet the requirements of the law, may still be rejected.

WHY WAS THE DIRECTIVE WITHDRAWN?

The department withdrew the directive on Friday, 9 October.

It said trying to implement the judgment immediately had serious consequences that the court order couldn’t have foreseen.

According to the department:

  • Applications overwhelmed refugee reception offices within days.
  • Home Affairs officials faced risks to their safety.
  • Serious threats to public safety and order emerged.

The bold stays on the key phrases. “Faced risks to their safety” keeps the meaning of “placed at risk”, which the department used to describe the danger to its staff.

PROTESTS AND VIOLENCE

The withdrawal followed anti-immigrant protests in parts of the country.

In Durban, vehicles were set alight and businesses damaged in the city centre on Thursday, 8 October.

Protests also took place in Soweto.

The government has blamed the violence on the deliberate spread of misinformation on social media about the court ruling.

WHAT HAPPENS NEXT?

On Sunday, 11 October, Minister of Justice and Constitutional Development Mmamoloko Kubayi announced the government’s next steps.

Kubayi chairs the Inter-Ministerial Committee (IMC) on Migration, which President Cyril Ramaphosa set up in June to coordinate the government’s response to migration.

She said the government would approach the courts for a supervisory order.

That would allow the court to oversee the implementation process and give guidance on how to put its order into practice.

The government will also ask the court to consider a suspension period, giving Home Affairs time to build its capacity to handle asylum applications.

“The objective is not to delay compliance, but to ensure effective and sustainable compliance that serves both the administration of justice and the broader public interest,” Kubayi said.

THE 29 OCTOBER HEARING

A panel of judges in the Gauteng Division of the High Court will sit on 29 October.

It will consider two conflicting directives on asylum seekers, contained in separate judgments, and how they affect the implementation of the Constitutional Court ruling.

WHAT IT MEANS FOR ASYLUM SEEKERS

For now, the legal position hasn’t changed.

The Constitutional Court’s ruling still applies, and the government remains legally bound to comply with it.

Kubayi warned that failing to comply could amount to contempt of court.

Home Affairs says it will now embark on a fresh process to find the most appropriate way to comply with the court’s order.

It hasn’t yet said when new arrangements will be introduced.

WHAT HOME AFFAIRS SAYS

Schreiber said the department respected the court’s judgment, despite disagreeing with parts of it.

He said the department now had facts showing it couldn’t implement the ruling in the way initially contemplated, and that it would present those facts to the court.

The government has also said that enforcement of immigration laws will continue.

WHAT DO YOU THINK THE GOVERNMENT SHOULD DO NEXT?

Let us know in the comments below…

Read full story at source