By Qhuba Gumbi-Dlamini
South Africa is facing an immigration challenge that is as much about the capacity of the state as it is about the people crossing its borders.
The political pressure for tougher action against undocumented migrants has intensified amid concerns about unemployment, crime, pressure on public services and competition for scarce economic opportunities. Yet the country’s constitutional framework places important limits on how far the state can go in pursuing immigration enforcement.
The central question is therefore not whether South Africa has the right to control its borders. It does. The more difficult question is whether the state has the institutional capacity to enforce its immigration laws effectively, fairly and consistently while respecting the Constitution.
South Africa’s immigration system sits at the intersection of sovereignty, human rights, refugee protection and administrative justice. The result is an extraordinarily complicated policy environment in which detention and deportation cannot simply be treated as administrative exercises.
The Constitution protects the dignity and fundamental rights of every person within the Republic, including undocumented migrants. It can be argued that this constitutional protection means that immigration enforcement must remain subject to legality, fairness and judicial oversight.
A state with the power to deport — but not without limits
South Africa’s Immigration Act provides the legal basis for dealing with people who are unlawfully in the country. But immigration enforcement does not operate in isolation.
The Refugees Act introduces an important qualification. A person who indicates an intention to seek asylum cannot simply be treated as an ordinary undocumented migrant and deported without access to the asylum process.
That principle was reinforced in Bula and Others v Minister of Home Affairs and Others, where the Supreme Court of Appeal held that authorities had to stop deportation and allow the applicants an opportunity to approach a Refugee Reception Office.
This distinction is critical. South Africa must be able to remove people who have no legal basis to remain in the country. But it must also be able to identify those who may genuinely require international protection.
The Constitutional Court’s jurisprudence has repeatedly reinforced this principle. In Ruta v Minister of Home Affairs, the Court recognised that even undocumented people may have rights under the Refugees Act. More recently, the Scalabrini Centre litigation emphasised the constitutional protection of asylum-seeking children and the need for individualised assessments rather than automatic removal.
The message from the courts is therefore clear: immigration status does not extinguish human rights.
The Home Affairs capacity problem
Perhaps the least discussed part of the immigration debate is the capacity of the Department of Home Affairs.
The department is expected to process visas and permits, manage asylum applications, determine immigration status, maintain documentation systems and participate in enforcement operations. Yet the paper identifies chronic understaffing and significant administrative backlogs as major obstacles to effective immigration management.
Parliamentary reporting cited in the paper indicates that some Home Affairs offices were operating at only between 32% and 42% of required staffing levels. The consequences include excessive workloads, delays, administrative errors and burnout. The asylum appeal backlog was reported to have exceeded 161,000 cases.
This creates a vicious cycle.
A person who cannot obtain a document promptly may remain undocumented. A person whose asylum claim is not processed may remain in limbo. An expired permit may become the beginning of an irregular status. And an individual whose nationality cannot readily be established may become difficult and expensive to deport.
In other words, administrative failure can itself become a driver of irregular migration.
The documentation dilemma
Documentation is another major weakness.
Many undocumented migrants may lack passports, birth certificates or other reliable identification. Some may have lost documents during their journey; others may come from countries where civil-registration systems are weak. Some may possess expired or fraudulent documents, while nationality itself may sometimes be disputed.
For Home Affairs, this creates an immediate practical problem: before someone can be deported, the state may need to establish who that person is and which country is prepared to accept them.
The absence of reliable documentation therefore complicates both immigration control and deportation.
This is why calls for mass deportations can sound considerably simpler than they are in practice.
Deportation is not merely the physical removal of a person across a border. It requires identification, nationality verification, legal procedures and, where necessary, engagement with the receiving state.
The border cannot be separated from regional realities
South Africa shares extensive borders with Zimbabwe, Mozambique, Botswana, Namibia, Lesotho and Eswatini.
The country’s border-management challenge is consequently immense. Porous border areas, organised smuggling networks, corruption, limited resources and inadequate technological infrastructure all undermine enforcement.
The Border Management Authority has made progress through the use of intelligence and technology, but the studies points to continuing staffing and funding constraints.
But there is another reality that cannot be ignored: migration into South Africa is partly driven by conditions beyond its borders.
Economic collapse, political instability, environmental pressures and unemployment in neighbouring countries create powerful incentives for people to move southwards. Tightening South Africa’s borders may reduce some irregular crossings, but it cannot by itself eliminate the conditions that produce migration.
The economic debate is more complicated than the politics.
Immigration has become deeply entangled with South Africa’s unemployment crisis.
Critics argue that undocumented migration increases competition for jobs, contributes to informal employment, places pressure on public services and increases demand for housing.
But the economic picture is not one-dimensional.
Migrants also establish businesses, generate employment, fill labour shortages and contribute to economic activity. The impact of immigration depends on the circumstances in which migration takes place and the effectiveness of the country’s migration-management policies.
This distinction matters.
South Africa needs a serious debate about undocumented migration without reducing every economic problem to the presence of foreign nationals.
The country’s unemployment crisis predates the current political debate about migration. Crime, poverty, inadequate services and housing shortages likewise have multiple causes.
A responsible immigration policy must therefore distinguish between legitimate concerns about unlawful migration and simplistic claims that migrants are responsible for South Africa’s broader socio-economic failures.
Xenophobia and legitimate public anger
The immigration debate has also produced some of the most difficult questions about social cohesion.
There is a danger in allowing genuine concerns about immigration enforcement to become hostility towards foreigners generally. At the same time, dismissing every concern about undocumented migration as xenophobia risks shutting down legitimate public debate.
Many academic writers have contended that competition for jobs, trading space, housing, customers and public services can create tensions between citizens and migrants.
The distinction is important.
A citizen has the right to demand that the government enforce immigration law. Citizens also have the right to peaceful protest. But neither citizens nor private organisations have the right to assume the powers of immigration officials, assault migrants or deny them their constitutional rights.
The courts have drawn precisely this line in litigation involving Operation Dudula. The principle emerging from the litigation is that immigration enforcement is a function of the state, not of vigilante organisations.
The courts are becoming part of the immigration system
One of the most striking features of South Africa’s immigration crisis is the extent to which it has become judicialised.
Courts are repeatedly being asked to intervene in disputes concerning detention, deportation, asylum applications and permits. That is partly a testament to the strength of South Africa’s constitutional democracy. But it is also evidence of administrative weaknesses.
The principle established by cases such as Lawyers for Human Rights, Bula, Ruta and Scalabrini is that immigration enforcement must comply with constitutional and administrative-law standards.
The danger for the state is obvious: poorly executed enforcement operations can produce litigation, delay deportations and increase costs for taxpayers.
Effective enforcement therefore requires more than more arrests. It requires competent administration.
A harder but smarter approach
South Africa needs an immigration policy that is simultaneously firmer and fairer.
That means strengthening Home Affairs, improving documentation systems, reducing asylum backlogs, expanding lawful migration pathways and investing in border management.
It also means tackling corruption.
It is recommended that Home Affairs systems should be modernised, addressing Border Management Authority funding and staffing, strengthening anti-corruption measures, accelerating asylum adjudication, improving employer compliance and developing regional migration agreements within SADC.
Perhaps most importantly, South Africa needs legal avenues through which migrants who are genuinely needed by the economy can work legally.
A system that makes legal migration almost impossible while leaving large numbers of people in administrative limbo can inadvertently create the very undocumented population that government then struggles to control.
Deportation is only one part of the answer
There is understandable public frustration when people remain in South Africa unlawfully for years without their immigration status being resolved.
Government therefore has both a legal right and a constitutional responsibility to enforce immigration law.
But deportation cannot be the entire policy.
The paper’s conclusion is that illegal immigration is driven by a combination of regional instability, economic hardship, porous borders, corruption, weaknesses in the permit system and long-standing asylum backlogs.
The government’s own comprehensive approach to migration management recognises that enforcement must operate alongside prevention of illegal entry, combating corruption, strengthening legislation and policies, and cooperation with neighbouring countries.
That is the real challenge.
South Africa does not have to choose between border control and human rights. A functioning constitutional state should be capable of delivering both.
The ultimate test will not be how many people are arrested or deported. It will be whether South Africa can build an immigration system in which legal migrants can enter lawfully, genuine refugees can obtain protection, unlawful migrants can be identified and removed through due process, employers comply with the law, borders are effectively managed, and citizens can raise legitimate concerns without turning those concerns into violence or discrimination.
That would be a more difficult policy than mass deportation.
It would also be a more sustainable one.
Disclaimer: The views expressed in articles published by The Counterhegemon are those of the individual authors and do not necessarily reflect the views, editorial position or policies of The Counterhegemon.
