South Africa’s Department of Home Affairs has instructed all Refugee Reception Offices to immediately receive new asylum applications, including from people who entered the country unlawfully or crossed the border somewhere other than an official port of entry.
The instruction follows the Constitutional Court’s landmark judgment in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others [2026] ZACC 30, handed down on 7 July 2026.
The judgment declared several provisions of the Refugees Act and related regulations unconstitutional and invalid. The declarations took effect immediately and were not suspended.
As a result, Home Affairs has now directed every Refugee Reception Office to assist any person who reports in person and indicates an intention to apply for asylum.
This applies even where the person:
- entered South Africa illegally;
- entered somewhere other than through a designated port of entry;
- has no visa;
- did not declare an intention to seek asylum at a port of entry; or
- failed to report to a Refugee Reception Office within five days of entering the country.
Home Affairs has specifically instructed its offices that they may no longer refuse to receive or facilitate an asylum application because of unlawful entry, unlawful presence, delayed reporting or a lack of documentation.
They may also no longer require an applicant to first obtain an asylum transit visa or another visa before applying for asylum.
No more “good cause” barrier
One of the major changes is the removal of the previous “good cause” or “compelling reasons” hurdle.
Under the provisions struck down by the Constitutional Court, people who entered South Africa irregularly or failed to meet certain reporting requirements could be required to explain their non-compliance before being allowed to proceed with an asylum application.
The system could therefore prevent an asylum seeker from having the actual merits of their refugee claim considered.
The Constitutional Court found that these provisions operated as procedural barriers that could exclude people from the asylum system before their claims were assessed on their merits.
The Court’s decision was grounded in, among other things, the constitutional principle of non-refoulement — the protection against returning a person to a country where they may face persecution or serious threats to their rights.
Reception offices cannot impose quotas
Home Affairs has also made it clear that Refugee Reception Offices may not operate policies or quotas that prevent people from accessing the asylum application process.
If an office cannot assist everyone who arrives on a particular day, officials must record the person’s details and provide a written, dated appointment.
Nobody may simply be turned away without being given a way to proceed.
The instruction also covers people who were previously turned away, had their biometric information captured or were given appointments without being allowed to lodge their applications. They must now be assisted to lodge their applications when they return to the office.
What does this mean for illegal immigration?
The judgment does not mean that South Africa has legalised illegal entry or that every person who enters the country unlawfully will automatically be allowed to remain.
Instead, it creates an important distinction between illegal entry and an asylum claim.
A person may have entered South Africa unlawfully, but that fact alone can no longer be used to prevent that person from accessing the asylum process.
Once the person indicates that they want to seek asylum, Home Affairs must receive and facilitate the application so that the claim can be considered.
Whether that person ultimately qualifies for refugee protection is a separate question.
The Constitutional Court’s decision therefore does not remove the government’s power to enforce immigration laws. Rather, it prevents immigration-related procedural violations from being used as an automatic gateway to excluding someone from the refugee-protection system before their claim is considered.
The development comes as Home Affairs Minister Leon Schreiber continues to pursue a broader programme aimed at strengthening immigration enforcement, border management and the removal of people who have no lawful basis to remain in South Africa.
The latest instruction means that enforcement of immigration law must now operate alongside the Constitutional Court’s requirement that genuine access to the asylum system be maintained.
For Home Affairs, the challenge is therefore to enforce South Africa’s immigration laws while ensuring that people who invoke refugee protection are not prevented from having their claims properly considered.
The department’s latest instruction deals specifically with the receipt of new asylum applications. It does not determine whether an applicant will ultimately be granted refugee status, nor does it itself resolve questions concerning detention or deportation.
The Constitutional Court judgment has, however, fundamentally changed the rules governing the first step: a person cannot be denied access to the asylum application process simply because they entered South Africa illegally.
