It is possible to have sympathy for both the Constitutional Court and home affairs in the latest controversy over asylum seekers, though judging from the furious reaction to the court’s ruling, this appears to be an increasingly unfashionable position.
The Constitutional Court ruled in July that asylum seekers cannot be excluded from applying for refugee status merely because they entered South Africa illegally or failed to comply with administrative deadlines. The decision is in line with international practice and international justice. As justice Steven Majiedt wrote in the unanimous judgment: “There is no justifiable basis why asylum seekers should be disbarred from applying based on procedural missteps.”
The principle is straightforward. Somebody fleeing political persecution should not be returned to possible imprisonment, torture or death because they failed to fill in a form, entered through the wrong border post or missed a deadline. The international principle of non-refoulement, which prohibits returning people to face persecution, exists for very good reasons.
But spare a thought for the home affairs official who must decide whether an asylum applicant is telling the truth.
Consider someone from Zimbabwe who says they were persecuted for supporting the opposition. Is that true? Were they actually threatened? Did they lose their job because of political intimidation, economic collapse or both? Do they have witnesses, or documentation? And if they have neither, does that make their claim untrue?
Former UN high commissioner for refugees Filippo Grandi put his finger on the problem when he observed: “People often have multiple and different overlapping reasons to move.” A refugee fleeing persecution will also want better economic opportunities. Distinguishing political persecution from economic desperation is sometimes extraordinarily difficult.
Reason for concern
Making the wrong decision has wildly different consequences. Accept an undeserving applicant and you have potentially allowed an economic migrant to stay. Reject a genuine refugee and you may have sent somebody back to be killed.
Consequently, there is good reason for home affairs to be concerned about the practical consequences of the judgment. When the department attempted to implement it through a directive in September, refugee reception offices were overwhelmed within days. The directive was withdrawn on October 9, with home affairs citing risks to officials and public safety. The department nevertheless reaffirmed its respect for the judgment.
This should not be regarded as defiance of the court. It illustrates the uncomfortable distance between constitutional principle and administrative capacity.
And here the numbers require perspective. Home affairs reported approximately 71,000 active asylum appeals at the end of 2025. That is an accumulated backlog, some of it dating back nearly two decades, rather than 71,000 new refugees arriving every year.
In fact, the department reported adjudicating just 3,579 new applications at first instance in 2024/2025, though restrictions on accessing the asylum system mean that figure understates potential demand. UNHCR estimates that South Africa hosted approximately 167,000 refugees and asylum seekers combined in 2025.
For a country of more than 60-million people, this is hardly an unmanageable number. Even 70,000 new arrivals a year would amount to barely one-tenth of 1% of the population. Accommodating them would require planning, particularly given South Africa’s unemployment problem, but it is hardly beyond the country’s capabilities.
The more pertinent question is why the state has allowed the asylum system to become so administratively cumbersome.
Other countries have been grappling with precisely this problem. Britain allows officials to consider unexplained delays in claiming asylum when assessing credibility. The EU’s new migration pact, implemented in June, introduces accelerated border procedures, with asylum decisions and appeals in specified cases generally limited to 12 weeks.
Summing it up
EU migration commissioner Magnus Brunner described the objective as determining “who can come to Europe, who can stay, and who must leave”.
South Africa could learn from these approaches. Its own revised immigration white paper proposes a “first safe country” principle, under which asylum seekers could be directed towards countries where effective protection is already available. That is reasonable in principle, provided those countries really are safe and agree to accept responsibility.
But the greater priority should be modernising the asylum system itself: proper identity verification, digital records, better country-of-origin intelligence, trained adjudicators, faster appeals and effective arrangements for returning unsuccessful applicants.
Home affairs deserves some credit. It reduced its active appeals caseload by nearly 9,000 during 2025. There is evidence of administrative progress, even if the accumulated failure remains substantial.
South Africa should also recognise that immigration and asylum are different problems. People seeking work should have access to transparent, appropriately regulated migration channels rather than being encouraged by an inadequate system to present themselves as refugees.
Ultimately, the Constitutional Court has defended an important principle: people who may genuinely need protection deserve an opportunity to make their case. Home affairs is entitled to insist that this principle must be implemented through a system capable of separating credible claims from opportunistic ones.
The court has established that South Africa cannot simply close the door. The government’s responsibility is to build a system that can decide, fairly and efficiently, who should be allowed through it.
But the key, critical, underlying issue here is this: there is no contradiction between compassion and competent border control. In fact, without the latter, the former eventually loses public support — and this is becoming very visible.
