South Africa: Government to Seek Court Guidance On Asylum Ruling, Introduce Registration System

Government will approach the courts for guidance on implementing the Constitutional Court judgment on the processing of asylum applications, while the Department of Home Affairs is expected to introduce a structured intention-registration and appointment system by 10 November 2026.

The Inter-Ministerial Committee (IMC) on Migration announced the measures on Sunday in Pretoria during a media briefing, saying Government had considered the legal implications of the judgment handed down on 7 July 2026 and the administrative challenges arising from its implementation.

The court declared sections of the Refugees Act, which allowed for immigration officials to deport an asylum seeker if they are in the country without a transit visa, unconstitutional. A transit visa is issued at a port of entry to allow a person to travel to a refugee reception centre and apply for asylum.

Following legal consultations, Government has been advised that it can approach the courts for a supervisory order to oversee the implementation process and seek guidance on the measures required to give effect to the judgment.

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"Accordingly, Government will request the Court to provide guidance on the nature and scope of the supervisory measures that may be required, as well as the appropriate duration of any suspension period necessary to build the operational capacity required for implementation.

"The objective is not to delay compliance, but to ensure effective and sustainable compliance that serves both the administration of justice and the broader public interest," the IMC Chair Mmamoloko Kubayi said.

A supervisory order could allow the court to retain oversight of the implementation process and provide a suspension period for Home Affairs to strengthen its administrative, human resource, infrastructure and processing capacity.

The IMC said Government remained committed to upholding the Constitution, the rule of law and South Africa's national and international obligations towards refugees and asylum seekers.

It also emphasised that Government remained legally bound to comply with the existing court order while pursuing further legal guidance.

"We are in a situation where the IMC must find a balance between Compliance with the court order and listening to the concerns of many South Africans, and we believe we will be able to find that balance, though we need time and patience that we will request formally from the court and that we are requesting today from our citizens," Kubayi said.

Structured asylum registration system

The Department of Home Affairs is expected to introduce a phased intention-registration and appointment model for asylum applications by 10 November 2026.

Under the proposed system, applicants will register their intention to seek asylum through an online platform and receive a receipt recording their personal particulars, biometric information, reference number and appointment at a Refugee Reception Office.

Assisted registration will be available at Refugee Reception Offices and, upon request, for people in police or immigration detention through officials, legal representatives and civil society partners, in the main languages.

The receipt will serve as proof that a person has declared an intention to seek asylum. It will not constitute a section 22 visa or recognition of refugee status.

According to the IMC, the system will operationalise the legal protection against refoulement -- the forced return of a person to a place where they may face persecution or serious harm -- that attaches by operation of law when a person declares an intention to seek asylum.

Home Affairs will instruct its officials and the Border Management Authority that holders of valid receipts must not be removed or refouled or arrested or detained solely for being in the country without a visa, pending the lodging and final determination of their applications.

The South African Police Service, Department of Correctional Services, National Prosecuting Authority and courts will also be informed of the arrangements.

The IMC clarified that the protection would apply to people who had registered an intention to make a first asylum application.

People whose asylum claims have been finally rejected will not be able to reactivate protection simply by declaring a new intention to apply. However, where a rejected applicant raises a specific, genuinely new claim that removal would expose them to persecution or serious harm, the matter should be referred for legal advice before removal.

The system will also include confidentiality safeguards, protection of personal information, published service standards, a complaints mechanism and statistics available to the courts.

Applicants who fail to attend their appointments without seeking an extension will lose their appointments, while rejected applicants will be flagged to prevent abuse of the system.

Legislative reforms and refugee reception centres

In parallel, the Minister of Home Affairs is drafting legislation aligned with the Revised White Paper on Citizenship, Immigration and Refugee Protection, which Cabinet has approved.

The proposed legislation is expected to be processed through Parliament in the next financial year and will, among other things, provide for remote lodging of asylum applications.

The IMC said it had requested the Minister to fast-track the process. The legislation will also address the first safe country principle, as outlined in the White Paper.

Home Affairs has further reported progress towards implementing the President's announcement in June that refugee reception centres would be moved to ports of entry, beginning with Beitbridge in December.

The IMC said Government would consider public proposals for establishing refugee camps, particularly for people whose applications were still being processed, taking into account the legal and financial implications.

Meanwhile, relevant government departments and entities have been directed to participate in a High Court hearing scheduled for 29 October 2026.

A panel of judges appointed by the Judge President of the Gauteng Division of the High Court will consider two conflicting directives on the same legal question concerning asylum seekers. The outcome will have a bearing on the administrative implementation of the Constitutional Court judgment.

The IMC urged South Africans and other stakeholders to allow the legal processes to run their course and to exercise restraint.

"South Africa remains a constitutional democracy governed by the rule of law. Matters relating to asylum, migration, and border management must be addressed through lawful processes and not through misinformation, intimidation, incitement, or acts of violence," Kubayi said. - SAnews.gov.za