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Home » asylum seeker applications
Constitutional Law

Home Affairs cannot use lack of capacity to avoid asylum obligations, says immigration attorney

Ashraf Essop says withdrawing the asylum directive does not undo the Constitutional Court ruling. The ANC rejects claims that the judgment opens the floodgates to irregular immigration.
Kennedy MudzuliBy Kennedy MudzuliOctober 9, 2026Updated:October 9, 2026No Comments
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Burnt cars in Soweto following violent protests over asylum seeker applications and immigration policy.
Burnt-out vehicles in Soweto following violent protests linked to tensions over asylum seeker applications and immigration policy.
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  • Immigration attorney Ashraf Essop explains that Home Affairs cannot use capacity constraints as a reason to avoid its constitutional obligations toward asylum seekers.
  • The directive was withdrawn after violent protests in Soweto and Durban. However, the Constitutional Court judgment remains in place.
  • The ANC says both the judgment and the proposed employment law amendments have been misrepresented. The party argues that the government is actually strengthening immigration controls.

The Department of Home Affairs cannot rely on a lack of staff or operational capacity to avoid its constitutional obligations to asylum seekers, according to immigration attorney Ashraf Essop.

He made this comment during an interview on Newzroom Afrika after the withdrawal of a directive that was meant to implement a Constitutional Court judgment.

Essop says withdrawing the directive does not undo the ruling, which addressed procedural barriers that stopped people from accessing the asylum application process. Meanwhile, the ANC has rejected claims that the judgment will open the floodgates to irregular immigration.

Withdrawal does not reverse the judgment

On Friday, 9 October 2026, the Department of Home Affairs announced that its Director-General had withdrawn a directive issued on 28 September regarding the intake of asylum seeker applications. This directive was intended to give effect to the Constitutional Court’s 7 July 2026 judgment in the case between the Scalabrini Centre of Cape Town and the Minister of Home Affairs.

The withdrawal came after violent protests erupted in Soweto and Durban, amid growing tensions over asylum seeker applications and immigration policy. The department said it would reconsider how to implement the judgment while tackling operational challenges at refugee reception offices.

Esop said the case was about whether asylum seekers could be excluded from the application process simply because they had not met certain procedural requirements relating to documentation and reporting to refugee reception offices.

The judgment means Home Affairs cannot deny people access to the asylum system or reject their claims just because of procedural non-compliance. However, it does not guarantee refugee status for every applicant.

Capacity concerns cannot override constitutional duties

Essop questioned the department’s explanation that it did not have the operational capacity to handle the consequences of the judgment, even though it had time to prepare for its implementation.

He said the process of implementing the ruling had revealed serious problems at refugee reception offices, including staff shortages and long queues. However, he argued that these challenges could not override the department’s constitutional responsibilities. “The Constitutional Court has held that lack of capacity should not be an excuse for carrying out constitutional responsibilities,” Essop said.

He also questioned the department’s references to threats against officials, asking where these threats had come from and who was responsible. He noted the long queues at the refugee reception office in Pretoria, where, according to him, only about 30 applicants were attended to each day in some cases.

Essop mentioned a backlog of roughly 160,000 applications awaiting attention. He also cited figures showing that about 700 applications had been approved and around 25,000 rejected, although the timeframe for these numbers was not clearly established during the interview.

He said the department needs a practical system that will allow it to process applications while still meeting its legal obligations.

ANC rejects claims that ruling opens immigration floodgates

In a statement on Thursday, 8 October 2026, the ANC called for vigilance and action against what it described as disinformation and misinformation about the Constitutional Court judgment and the Employment Services Amendment Bill.

The party rejected claims that these developments would open the floodgates to irregular immigration. They argue that the government is strengthening processes to document undocumented migrants and regulate the employment of foreign nationals.

The ANC said the Employment Services Amendment Bill, which was tabled in the National Assembly in May 2026, aims to align employment legislation with the Immigration Act and Refugees Act, while prioritising job opportunities for South African citizens and permanent residents.

The proposed amendments would allow the Minister of Home Affairs to set maximum quotas for employing foreign nationals in certain sectors or occupations. Employers would also be required to check work authorisation documents, labour inspectors would get stronger enforcement powers, and there would be penalties for repeated unlawful employment of foreign nationals.

The ANC said these measures are part of broader efforts to address unlawful employment practices, strengthen border management, and fight corruption in the immigration system.

The party emphasised that the Constitutional Court judgment only invalidated specific procedural parts of the Refugees Act, not the Immigration Act itself. They argued that the ruling should not be seen as putting the interests of foreign nationals ahead of those of South Africans.

The judgment reinforces the need to assess asylum claims on their merits and upholds the principle of non-refoulement. This means asylum seekers cannot be returned to a country where they face persecution before their claims have been properly reviewed.

Government faces pressure to clarify its approach

Home Affairs Minister Leon Schreiber said a complaint had been lodged with the ANC about what he called a deliberate disinformation campaign targeting him and the department. He said the government had also approached the Electoral Commission of South Africa under its new disinformation code and called for accountability for those spreading false information or inciting violence.

Gauteng Premier Panyaza Lesufi welcomed the withdrawal of the directive, saying it gave government more time to consult and rethink its approach. He said the process would require engagement involving the executive, Cabinet, and Parliament.

Essop said the proposed changes to employment law could introduce a quota system and place more responsibilities on employers who hire foreign nationals. He also questioned Schreiber’s absence from a recent inter-ministerial briefing on migration, saying he had not seen any explanation for this.

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Kennedy Mudzuli

Multiple award-winner with passion for news and training young journalists. Founder and editor of Conviction.co.za

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