The Department of Home Affairs has withdrawn the directive issued to immigration staff instructing them to allow undocumented foreign nationals to apply for asylum or refugee status instead of deporting them upon detection, following a Constitutional Court judgment delivered on 7 July 2026 in a case brought by Cape Town-based pressure group Scalabrini.
In a statement, the department also sought to exonerate its political head, Minister Leon Schreiber, stating that he had not instigated the decision in any way, as it was purely an administrative matter.
“The directive was originally issued to all Refugee Reception Offices (RROs) as a purely operational attempt to support the implementation of the Court’s order, without reference to, or the knowledge of, the Minister of Home Affairs or any other political office-bearer,” the Department of Home Affairs said in the statement.
“Claims that it was a politically motivated decision are therefore categorically untrue, as the directive emanated from a Constitutional Court case that the Department had opposed.”
The department also attributed the decision to Thulani Mavuso, the Deputy Director-General responsible for immigration.
The department expressed frustration with the ruling, claiming that it had triggered an influx of migrants that overwhelmed its systems.
“However, the attempt to practically implement the judgment immediately led to serious consequences that could not have been foreseen in the Court order. This includes, amongst others, the fact that RRO operations were overwhelmed within a matter of days since the directive was issued, Home Affairs officials were placed at risk, and serious threats to public safety and order had emerged,” the department said, suggesting that the judgment had created significant operational challenges.
The department said it was working on determining how best to comply with the judgment and its correct interpretation.
“With these new facts now at hand, the Department will embark on a fresh process to determine the most appropriate operational approach to ensure compliance with the Constitutional Court’s order. The Department reaffirms its respect for the judiciary and the rule of law, as well as its commitment to determine an operationally appropriate and sustainable method to comply with the order,” the department said.
The ruling, issued on 7 July 2026, does not, contrary to popular belief, provide for the blanket granting of refugee or asylum status. Instead, it prohibits the summary deportation of undocumented foreign nationals before their asylum applications have been adjudicated, should they choose to apply.
Summary of the Constitutional Court ruling
- Removal of procedural barriers: The court struck down provisions that prevented individuals from applying for asylum solely on procedural grounds, such as entering through unofficial border posts, lacking a transit visa or missing a strict five-day reporting window.
- No automatic status: The Inter-Ministerial Committee on Migration and government officials, including Minister Mmamoloko Kubayi, have clarified that the ruling does not automatically grant refugee status, permanent residency or citizenship to anyone.
- Assessment on the merits: Every asylum seeker must be allowed to lodge an application so that their claim can be assessed individually on its legal merits. This upholds the international principle of non-refoulement, which prohibits returning people to places where they face persecution or serious harm.
- Repeat applications distinguished: In a separate ruling in May 2026, Director-General, Department of Home Affairs v Irankunda, the Constitutional Court ruled in favour of Home Affairs, confirming that the Refugees Act does not permit failed asylum seekers to lodge repeat or subsequent applications after their original claims have been finally rejected.