Home Affairs withdraws its asylum directive: what changed, and what did not

On 7 July 2026 the Constitutional Court handed down a unanimous judgment in Scalabrini Centre of Cape Town v Minister of Home Affairs [2026] ZACC 30. It confirmed that several provisions of the Refugees Act are unconstitutional and invalid: sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B).

Those provisions shut people out of the asylum process for procedural reasons: entering the country other than through a port of entry, not having an asylum transit visa, or not reporting to a Refugee Reception Office within five days. After the judgment, a procedural lapse on its own can no longer stop a person from having their asylum claim considered on its merits.

It is important to be clear about what the judgment does not do. It does not grant anyone refugee status, citizenship, permanent residence or the right to vote. Claims that it did were simply untrue.

On 28 September 2026 Home Affairs head office instructed all Refugee Reception Offices to receive, with immediate effect, every person who reported in person and indicated an intention to apply for asylum. That included people who had entered irregularly, had no visa or had not reported within five days.

Within days the offices were overwhelmed. Long queues formed, intimidation was reported at some offices, and protests in Durban and Soweto turned violent. On 9 October 2026 the Director-General withdrew the directive. Home Affairs said it had been issued without the knowledge of the Minister or any political office-bearer, and that implementing it immediately had placed officials at risk and created serious threats to public safety and order.

No replacement directive has been issued. On 11 October 2026 government announced a phased, biometric online system for people to register an intention to apply for asylum and to book an appointment at a Refugee Reception Office. The target date for it to be working is 10 November 2026. The receipt it issues will not be an asylum seeker visa.

Government also said it intends to ask the court for a supervisory order. As far as I can establish, that application has not yet been filed. A full bench of the Gauteng High Court is separately due to hear conflicting asylum judgments on 29 October 2026.

Meanwhile the Constitutional Court’s judgment remains binding. Withdrawing a directive does not suspend a court order.

Nothing in this episode changes the Immigration Act rules for work, study, business, family or retirement visas, or for permanent residence. I would also caution anyone who has no real fear of persecution against treating asylum as a shortcut to staying in South Africa. It is not a substitute for a visa, and deportations of people who have not applied, or whose claims have been finally rejected, continue.

If you are on the visa side of the system, these recent instruments matter more to you: