Anti-illegal immigration groups in South Africa have expressed concern over a new directive by the Department of Home Affairs. The directive allows undocumented people to apply for asylum, following a Constitutional Court judgment handed down in July 2026. The judgment found certain provisions of the Immigration Act to be unconstitutional. The court ruled that unlawful entry and related procedural failures can no longer be barriers to lodging an asylum application.
The Constitutional Court judgment, known as the Scalabrini judgment, has been met with criticism from groups such as Insizwa Nobunsizwa. Nkosikhona Phakelumthakathi Ndabandaba of Insizwa Nobunsizwa stated that the only solution for the government was to repatriate those in the country illegally to their countries of origin. He expressed concerns about the influx of foreign nationals in certain areas, citing a recent example of 200,000 Malawians being repatriated.
Immigration expert Brandon Tshabangu noted that the judgment had "opened a can of worms" for the country. He explained that the Department of Home Affairs had previously established standard procedures for asylum and refugee applicants. These procedures required applicants to present themselves at a refugee reception office within a specified period and meet certain requirements. However, the new judgment allows applicants to declare themselves as asylum seekers without needing to provide documentation.
Tshabangu highlighted the potential difficulties in distinguishing between those fleeing persecution and economic migrants. He stated that it would be a serious administrative challenge for the Department of Home Affairs to process applications without proper documentation. According to Tshabangu, a person could go to a refugee center and provide a false name without any documents to prove their identity or country of origin.
The directive has also been criticized by ActionSA, which views it with grave concern. The organization believes that the practical consequences of the directive could be disastrous for South Africans. They argue that the country cannot afford a system where undocumented people enter, lodge asylum applications, acquire temporary legal status, and are dispersed into communities.
In response to the criticism, the Department of Home Affairs stated that it is constitutionally obliged to implement the Constitutional Court's binding judgment. An operational directive was issued to give effect to the judgment, ensuring compliance with the ruling of the highest court in the land. The department is required to consider asylum applications from undocumented people, including those who entered South Africa illegally.
The controversy surrounding the directive highlights the challenges faced by South Africa in managing its borders and asylum system. The implementation of the Constitutional Court's judgment will be closely watched, as it may have significant implications for the country's immigration policies and the lives of undocumented migrants.
Key points
- The Constitutional Court judgment allows undocumented people to apply for asylum.
- Anti-illegal immigration groups criticise the directive, citing concerns about the influx of foreign nationals.
- The directive has sparked debate about the challenges of distinguishing between those fleeing persecution and economic migrants.
