Home Affairs opens refugee offices to asylum claims from undocumented applicants

Refugee reception offices have been instructed to accept asylum applications from people who entered South Africa without documents, after the Department of Home Affairs moved to give effect to a Constitutional Court judgment handed down in July 2026.

The directive tells refugee reception offices to take applications from people who entered the country illegally, entered outside a designated port of entry, hold no visa, or did not declare an intention to seek asylum on arrival. The court found that certain provisions governing the Immigration Act were unconstitutional, and that unlawful entry and related procedural failures could no longer stand as barriers to lodging an asylum application.

As IOL reported on 8 October, anti-illegal-immigration groups have criticised the directive and called on the government to stop issuing what they describe as permits to be in the country. ActionSA said it viewed the directive with grave concern, warning that South Africa cannot afford a system where undocumented people enter the country, lodge asylum applications, acquire temporary legal status and are immediately dispersed into communities.

Home Affairs said in a statement that the Constitutional Court had handed down a binding judgment which the department is constitutionally obliged to implement. An operational directive was issued solely to give effect to that judgment, the department said, describing this as standard practice to ensure compliance with rulings of the highest court in the land.

One of the central findings, according to immigration experts, was that it was unreasonable for immigration authorities to expect people fleeing conflict to have documents when they presented themselves to apply for asylum.

Immigration expert Brandon Tshabangu said the judgment had opened a can of worms for the country. He said Home Affairs had established standard procedures that all asylum and refugee applicants were required to follow, including presenting themselves at a refugee reception office within a specified period, and that the legal position had now changed.

He said the order means applicants do not need to declare or present anything before the refugee reception office. On his reading, a person who has been in South Africa illegally for 15 years could go to a refugee reception office and declare themselves an asylum seeker, and the department would then be required to consider the application despite the absence of information substantiating it.

Tshabangu said anyone can apply for asylum as long as they say they are fleeing persecution from whatever country they come from, and that it could be difficult to distinguish between someone fleeing persecution and an economic migrant. He described the position as a serious administrative conundrum, saying a person does not need to present a single document and could give a false name without providing proof of who they are or where they come from.

Nkosikhona Phakelumthakathi Ndabandaba of Insizwa Nobunsizwa said the only recourse for the government was to repatriate those in the country illegally to their countries of origin. He said residents had complained about an influx of foreign nationals in the Moore Road area, cited the repatriation of 200 000 Malawians two months ago, and asked why Pakistanis and Bangladeshis were being given papers. He said South Africa must be taken seriously as a country of laws, and that the government had to listen to South Africans or risk the situation getting out of hand.

The dispute turns on what the judgment did and did not do. The court did not create a new route into the country, and it did not remove the requirement that an application be considered on its merits. What it removed was the practice of turning an applicant away at the counter because of how they entered or what they failed to declare on arrival. A person who applies under the directive is an applicant, not a recognised refugee, and the department still has to decide the claim.

That distinction matters for the queues outside refugee reception offices, where the practical effect will be felt first. South Africa’s asylum system has for years processed claims more slowly than they arrive, and the department has not said in the material available how many additional applications it expects, how many staff will handle them, or what the processing time will be. Those figures are the ones that will determine whether the directive changes anything on the ground or simply lengthens the line.

Home Affairs has framed its position narrowly. It says the judgment binds it, and that the directive exists to comply with it. That is also the answer the department is likely to give to critics who want the policy reversed, because a binding judgment of the Constitutional Court is not a policy choice a department can set aside by preference. The route open to those who disagree is to challenge the judgment’s scope in court, or to press Parliament to amend the legislation the court found wanting.

The Enquirer has asked Home Affairs for the operational numbers behind the directive, including the expected volume of applications and the capacity at refugee reception offices to absorb them. We will publish the department’s answer when it comes.