The Department of Home Affairs has withdrawn its 28 September directive governing the processing of asylum applications after refugee reception offices experienced overwhelming demand, raising concerns about administrative capacity, staff safety and public order.
The decision comes amid growing public debate over South Africa’s immigration system and the implementation of a Constitutional Court judgment that protects asylum seekers from being denied access to the refugee determination process solely because of immigration-related procedural failures. The directive was introduced following the Constitutional Court’s landmark ruling on 7 July 2026 in a case brought by the Scalabrini Centre of Cape Town against the Minister of Home Affairs and other government respondents.
In its unanimous judgment, the court confirmed that several provisions of the Refugees Act were unconstitutional because they prevented asylum seekers from having their claims assessed on their merits. These included restrictions affecting people who entered South Africa through undesignated border crossings, failed to report within prescribed periods or lacked the required asylum transit documentation.
The ruling reinforced the principle of non-refoulement, which protects people seeking asylum from being returned to countries where they may face persecution or other serious harm before their protection claims have been properly determined. Importantly, the judgment does not automatically grant refugee status to undocumented foreign nationals. Rather, it requires that asylum applications be considered through a lawful process, with decisions based on the merits of individual claims.
On 8 October, the Inter-Ministerial Committee on Migration acknowledged that refugee reception offices had been overwhelmed following the implementation of departmental instructions. Government attributed the difficulties to operational pressures and misunderstandings surrounding the judgment and its implications The department has also rejected allegations that the changes to asylum processing were politically motivated. In a statement issued on 7 October, Home Affairs said it had opposed the Scalabrini litigation but was constitutionally required to comply with the court’s binding decision.
It further expressed concern about what it described as a disinformation campaign surrounding the judgment, warning that misleading claims were contributing to public confusion over the asylum process. The withdrawal of the September directive now places renewed attention on how government intends to manage applications while meeting its constitutional obligations.
Although operational instructions can be revised, the Constitutional Court’s judgment remains binding. Home Affairs must therefore find an approach that balances effective immigration administration, the safety of officials and the public, and the legal rights of people seeking protection.
The next critical issue is whether the department can introduce a sustainable processing system that prevents overcrowding, reduces administrative delays and ensures that asylum applications are assessed fairly. For asylum seekers, the uncertainty surrounding the operational changes raises practical questions about access to refugee reception offices and the procedures that will apply to new applications.
The department’s next steps will be closely watched as South Africa continues to grapple with the challenges of managing migration while upholding constitutional rights and the rule of law. Additional verified context: Reporting published on 9 October confirms that the withdrawal was made by the Director-General’s office and that the department intends to reconsider how the court ruling should be implemented.
