Published On: July 21st 2026
Authored By: Nsindiso Makhaye
Stadio Higher Education
Abstract
This article investigates the progressive constriction of South Africa’s architecture for migration and international protection governance. Although historically commended for its domestication of expansive human rights instruments, South Africa has gravitated toward a markedly restrictionist paradigm that systematically conflates immigration enforcement with refugee protection. Drawing on the 2026 ACCESS National Report for South Africa, the study interrogates the structural, procedural, and juridical impediments instituted by the state to curtail access to asylum, which constitutes the primary legal conduit to regularization and eventual naturalization for displaced non-citizens.
The analysis identifies three pivotal systemic mechanisms. First, the operationalization of the Border Management Authority (BMA) and its implementation of informal pushbacks at undocumented land-border crossings. Second, the routinized recourse to arbitrary administrative and criminal detention under the provisions of the Immigration Act. Third, entrenched procedural obstructions, notably the unlawful cessation of services at regional Refugee Reception Offices (RROs) and pervasive administrative malfeasance. These measures operate in concert to exclude bona fide asylum seekers from the state’s refugee status determination processes.
Assessed against constitutional guarantees and international legal obligations, the paper contends that statutory reforms, particularly the 2020 amendments to the Refugees Act, alongside systemic administrative deficiencies, function to reclassify vulnerable persons in need of protection as “illegal foreigners.” The cumulative effect is the erosion of human dignity and the foreclosure of lawful avenues to secure regularized status and citizenship.
I. Introduction
The nexus of migration governance, assertions of national sovereignty, and commitments under international human rights law has emerged as a locus of acute juridical and political contestation within post-apartheid South Africa. The Republic initially instituted a progressive legislative regime via the promulgation of the Refugees Act 130 of 1998, distinguished by its incorporation of both the 1951 United Nations Convention Relating to the Status of Refugees and the more expansive definition articulated in the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.[1] Yet the empirical conditions of the preceding two decades demonstrate a pronounced departure from these foundational principles.
Contemporary state apparatuses have progressively privileged restrictionist modalities of border control, containment, and deterrence at the expense of humane administration and the provision of legal documentation.[2] This structural realignment has engendered substantial impediments for non-citizens attempting to access the legal pathways requisite for obtaining international protection, achieving stable residency, and ultimately securing South African citizenship.[3]
A principal territorial and juridical obstruction is the operationalization of the Border Management Authority (BMA). Instituted pursuant to the Border Management Authority Act of 2020 and rendered fully operational in April 2023, the BMA has systematically undertaken the interception and summary pushback of undocumented migrants at terrestrial borders, thereby denying them the legal opportunity to articulate an intention to seek asylum.[4]
Such practice constitutes a direct contravention of the cardinal principle of non-refoulement under international law, which proscribes the return of individuals to jurisdictions where they are at risk of persecution or systemic violence.[5] Concurrently, the domestic enforcement framework is substantially underpinned by punitive regimes of detention. A persistent statutory disjuncture endures between the Immigration Act of 2002, predicated on a restrictionist paradigm that deploys administrative and criminal detention as principal instruments of enforcement, and the Refugees Act, which, in principle, confers immunity upon asylum seekers from prosecution for irregular entry.[6]
In operational terms, this statutory incongruity has been intensified by the Refugees Amendment Act of 2020 and its attendant regulations. These legislative revisions divest individuals of protection and effectuate their reclassification as “illegal foreigners” in instances where they fail to demonstrate “good cause” for irregular entry or for omitting to apply for an asylum transit visa within the prescribed five-day period.[7] This statutory recalibration operates to effectively circumvent seminal jurisprudential protections articulated by the Constitutional Court, which had historically affirmed that an expressed intention to seek asylum supersedes the punitive application of immigration enforcement measures.[8]
II. Legal Analysis
The juridical terrain governing the acquisition of citizenship by non-citizens in South Africa is defined by an enduring tension between the state’s sovereign prerogative to regulate territorial ingress and the constitutional imperative to safeguard human dignity and preclude statelessness. While citizenship constitutes the principal conduit to political enfranchisement, social protection, and juridical security, the formal prerequisites for naturalization, frequently anchored in inflexible, state-centric conceptualizations, function for many as instruments of exclusion.
The Conflict Between State Sovereignty and Constitutional Rights
The South African juridical framework regulating citizenship is principally governed by the South African Citizenship Act. Historically, the state has deployed administrative instruments, namely birth registration and identity documentation, to demarcate the parameters of national belonging. This state-centric paradigm frequently conflicts with the socio-historical realities of indigenous and transnational communities, including the Venda and Tsonga, whose conceptions of identity are grounded in kinship structures and historical affiliations that antedate contemporary colonial boundaries.
The Constitutional Court has increasingly intervened in rectifying such exclusionary practices. A notable jurisprudential development is the Court’s recent determination that the automatic forfeiture of South African citizenship consequent upon the acquisition of foreign nationality is constitutionally invalid. This adjudication harmonizes domestic legislation with international initiatives aimed at the prevention of statelessness and recognizes the mutable character of contemporary identity.[9]
Institutional Barriers and “Displaced Belonging”
Despite progressive judicial pronouncements, the de facto acquisition of citizenship continues to be attended by substantial impediments for numerous non-citizens. The “cartographic violence” inherent in colonial-era territorial demarcations persists through contemporary administrative obstacles, whereby individuals from contiguous states are routinely categorized as economic migrants rather than as members of historically affiliated communities. This engenders a condition of “legal precarity,” wherein even those possessing protracted regional ties encounter considerable difficulty in negotiating passport and residency regulations.[10]
Moreover, the non-recognition of customary marital unions in certain jurisdictions compounds these impediments, as unregistered unions frequently fail to yield the documentary evidence requisite to substantiate claims to residency or citizenship, a phenomenon that disproportionately impacts women and children.[11]
Xenophobia and the “Hierarchy of Humanity”
The acquisition of citizenship is likewise profoundly conditioned by the prevailing social climate of Afrophobia and xenophobia. Extant scholarship demonstrates that exclusionary discourses frequently construct foreign nationals as existential threats to the identity and material resources of the dominant group; such sentiments may permeate bureaucratic processes and thereby protract the adjudication of legal documentation.[12]
Such social bias engenders a “hierarchy of humanity” in which certain groups are construed as more “deserving” of juridical status than others. The imbrication of these socio-political attitudes with inflexible legal regimes renders the pathway to citizenship not merely a technocratic procedure but a contested terrain of belonging, wherein the state functions as a formidable gatekeeper that frequently reproduces colonial-era social stratification.[13]
III. Conclusion and Recommendations
This analysis evidences a systemic reorientation from a progressive, rights-anchored paradigm toward an exclusionary, restrictionist regime. Through the systematic conflation of immigration enforcement with refugee protection, organs of the state have erected substantial structural and juridical impediments. The operationalization of the Border Management Authority (BMA) via summary pushbacks, the routinized recourse to punitive administrative detention, and the pervasive procedural obstructions encountered at Refugee Reception Offices (RROs) operate in concert to preclude lawful pathways to regularized status.
Exacerbated by the 2020 legislative amendments, these instruments effectuate the juridical reclassification of vulnerable persons as “illegal foreigners,” thereby divesting them of human dignity and entrenching them in a condition of protracted legal precarity. Ultimately, this inflexible, state-centric modality reinforces a social “hierarchy of humanity” animated by xenophobic sentiment, disregards the fluid socio-historical constitution of transnational communities, and subverts the constitutional obligation to preclude statelessness.
To harmonize South Africa’s governance with its constitutional imperatives and international commitments, the following reforms are proposed:
1. Terminate Unlawful Border and Administrative Practices: The Border Management Authority (BMA) must forthwith discontinue extralegal pushback operations to ensure adherence to the principle of non-refoulement, while Refugee Reception Offices (RROs) must abolish unlawful suspensions of service to guarantee unobstructed access to refugee status determination procedures.
2. Reconcile Conflicting Statutory Regimes: The Immigration Act should be recalibrated to incorporate the protective provisions of the Refugees Act, entailing the repeal of the restrictive five-day asylum transit visa stipulations that subvert established Constitutional Court jurisprudence.
3. Mitigate Administrative Malfeasance and Socio-Political Bias: Systemic bureaucratic impropriety and xenophobic prejudice within public service institutions must be eradicated through targeted capacity-building initiatives, thereby ensuring impartial, transparent, and expeditious adjudication of residency and naturalization applications.
4. Accommodate Pluralistic and Customary Conceptions of Identity: Citizenship and civil registration frameworks must be reconfigured to recognize non-traditional modalities of belonging, including unregistered customary marital unions and transnational kinship affiliations, thereby redressing the enduring “cartographic violence” of historical exclusion.
IV. Future Outlook
The future outlook of South African citizenship governance depends on a critical choice: the state will either continue down a path of sovereign insulation that perpetuates human rights violations and legal invisibility, or it will heed judicial interventions to build an inclusive legal framework. Embracing a paradigm that respects both human dignity and regional fluidity is essential if South Africa is to reconcile its rich, interconnected history with the demands of a just and constitutional democracy.
References
[1] Chiara Scissa, ACCESS: The Role of Courts in Shaping Access to Asylum, South Africa National Report (Bologna: University of Bologna, 2026), 4, 33.
[2] Scissa, ACCESS National Report, 11, 21.
[3] Scissa, ACCESS National Report, 4-5.
[4] Scissa, ACCESS National Report, 8.
[5] Scissa, ACCESS National Report, 9, 35.
[6] Scissa, ACCESS National Report, 11-13.
[7] Scissa, ACCESS National Report, 12, 16.
[8] Scissa, ACCESS National Report, 11-12, 15 (citing Ruta v Minister of Home Affairs and Bula v Minister of Home Affairs [full case citations to be confirmed by author]).
[9] Melisa M Chawaremera, ‘Displaced Belongings: Indigenous Identity, Customary Law and the Struggles for Recognition in Post-Colonial Migration Systems’ (2025) 7 Frontiers in Human Dynamics 1655777, 6.
[10] Chawaremera (2025), supra note 9, 1-2.
[11] Chawaremera (2025), supra note 9, 5-6.
[12] Joshua Ringson, ‘Beyond the Binary: Unpacking Xenophobia and Afrophobia in South Africa’ (2025) 2(1) Socium 34-48, 35.
[13] Ringson (2025), supra note 12, 35.
