After the Department of Home Affairs withdrew its directive on implementing the Constitutional Court’s asylum ruling, immigration lawyer Craig Smith joined The Clement Manyathela Show on 702 to discuss what went wrong. He was joined by ATM parliamentary leader Vuyo Zungula and a senior lecturer from the Wits School of Law.
Listen to the full interview: The Clement Manyathela Show on 702
The Constitutional Court got it right
Craig’s starting point is clear: the Constitutional Court did nothing wrong. South Africa signed the international refugee conventions and passed the Refugees Act in 1998, knowing that people would come here to seek protection.
The July 2026 judgment, which started in the Western Cape, simply undid restrictions introduced under former Home Affairs Minister Aaron Motsoaledi. Under those rules, people without an asylum transit visa or with an irregular status were blocked from applying for asylum at all. The Court restored access to the process in line with international refugee law. It did not grant anyone refugee status.
The real problem: management, not the law
The queues at Refugee Reception Offices from 4 am are nothing new. They have been a reality since the early 2000s. According to Craig, who has represented clients at many of these offices, the issues are:
- Poor productivity at Refugee Reception Offices, rather than a pure lack of capacity
- Corruption, which undermines trust in the system
- Lack of training, which leads to wrong decisions on genuine claims
- Misplaced priorities at ministerial level, with a focus on digitising IDs and passports while immigration and refugee law is neglected
He also believes Home Affairs has a duty to educate the public, counter xenophobia and honour South Africa’s international obligations. Instead, with local government elections approaching in November, the issue has become politicised and dangerous.
Genuine asylum seekers are being turned away
The debate often focuses on economic migrants abusing the system. Craig shared cases from his own practice that show the other side:
- A Ukrainian family whose apartment was bombed was told by a Refugee Reception Office that there was no war in Ukraine.
- Families from the DRC whose homes were burnt down and whose parents were killed.
- Somali applicants at risk of being lumped together with child soldiers.
Sending such people back to danger is prohibited under international law, a principle known as non-refoulement. Craig sees these refusals as a direct result of poor training and inefficiency.
A practical solution: separate the deserving from the undeserving
Craig argues that if capacity is the problem, Home Affairs must think laterally. South Africa has done this before, with special dispensations for Zimbabwean, Angolan and Lesotho nationals. His proposal:
- Bring undocumented migration out of the shadows. Many undocumented people in South Africa are highly productive.
- Let those who are deserving stay, because they add value to the economy.
- Remove those who are not deserving, firmly and lawfully.
- Train and equip officials so that decisions are skilled, efficient and prompt.
The aim is balance, not open borders. And in his view, statements and briefings are not enough: the Minister of Home Affairs needs to step in and fix the system with real leadership.
What the other guests raised
The panel also discussed how long asylum appeals can take, what a section 22 asylum seeker permit allows (such as working or studying, depending on its conditions), and whether a “first safe country” rule should be written into South African law. These are live policy debates, and the outcome will shape the asylum system for years.
What this means for you
- If you have a genuine claim, your application deserves a proper, merits-based assessment. A wrongful rejection can and should be challenged.
- If your claim was rejected, get legal advice on the appeal or review route before deadlines pass.
- If you are an economic migrant, asylum is not the right route. Ask an immigration lawyer about the visa options that fit your situation.
Frequently asked questions
Why did Home Affairs withdraw its asylum directive? The directive led to overwhelming queues and public tension at Refugee Reception Offices. It was withdrawn so the department could plan how to implement the Constitutional Court ruling.
Does the withdrawal cancel the Constitutional Court ruling? No. The judgment stands. Home Affairs still has to give asylum seekers access to the process.
What can I do if my genuine asylum claim was rejected? You can appeal or seek a review. An experienced immigration lawyer can assess whether the decision was flawed.
Speak to an immigration lawyer
Craig Smith & Associates has represented asylum seekers and refugees from Ukraine, the DRC, Somalia and many other countries. If your claim was rejected or you need help with any immigration matter, contact our team for a consultation.
This article is general information and not legal advice.