By Vuyo Zungula
The ConCourt judgment amongst other matters ruled that a person who is illegal in South Africa cannot be arrested and deported IF they express an INTENTION to apply for asylum. Effectively, if an illegal immigrant just EXPRESSES an intention to apply for asylum they have to be released.
Yes we know asylum application doesn’t mean refugee status nor citizenship. The crux of the issue is what does an asylum application mean and what is afforded to people who merely posses a Section 22 permit.
A Section 22 permit is a legal document that is issued to an individual that has applied for asylum in South Africa whilst they await for Home Affairs to make a decision.
* A holder of a Section 22 permit can access SRD grants, is legally enabled to study, be employed and run businesses in South Africa.
* Auditor General back in 2020 stated, to clear the backlog on asylum applications and appeals, if no new applications are received it will take 68 years for Home Affairs to clear the backlog.
* Home Affairs indicates, it takes between 5-10 years for a decision to be finalised on an asylum application given the appeals & court processes. This is unlikely to change as the Refugee Status Determination Officers are less than a 100 for the whole country.
* The troubling feature as stated by Home Affairs is that 95% of asylum applications are denied as not meeting the legal requirements of a refugee.
* Home Affairs doesn’t have a system to track and trace individuals who are asylum applicants. Most asylum applicants receive the Section 22 permit fail to report to Refugee Reception Office & continue to live in SA without lawful documentation.
* Home Affairs doesn’t have systems to adequately ascertain whether asylum seekers are not fugitives. Fulgence Kayishema was criminally indicted for the killing of 2000 people in Rwanda. He came to South Africa seeking asylum and was given a refugee status, he lived in the country under a false name for more than 20 years working.
* The Employment Services Amendment Bill proposes a removal of an “asylum seeker” in the definition of a foreign national. Meaning a foreign national who is illegal in the country, who has just merely applied for asylum is afforded the same rights as a citizen. This is even though 95% of asylum applications do not meet legal requirements and it takes a minimum of 5 years for an application to be finalised. In the years, they are legally entitled to work just like citizens.
The anger directed to the South African government by its citizens is legitimate. This ruling effectively means an illegal immigrant can have legal status in South Africa through an asylum application.
Even though 95% of these applications are not legitimate, they will still get to have access to work and business opportunities, SRD grants until the applications are finalised which takes years.
