South Africa: Government Seeks Court Guidance on Asylum Ruling

• The South African government will seek court guidance on implementing a Constitutional Court judgment regarding asylum applications.
• A new phased intention-registration and appointment system for asylum seekers will be introduced by November 10, 2026.
• The Constitutional Court declared sections of the Refugees Act unconstitutional for allowing deportation of asylum seekers without a transit visa.
• The new registration system will provide a receipt that offers protection against refoulement for individuals declaring an intention to seek asylum.
• The government aims for effective compliance with the judgment, not delay, and seeks a supervisory order to build operational capacity.

The receipt issued under the new system, while not a Section 22 visa or recognition of refugee status, will serve as definitive proof of this declared intention.

The South African government, through its Inter-Ministerial Committee (IMC) on Migration, recently announced a dual strategy in Pretoria to address a significant Constitutional Court judgment. On Sunday, the IMC revealed plans to seek judicial guidance on the implementation of the court's ruling concerning asylum applications, while simultaneously introducing a new, structured intention-registration and appointment system for asylum seekers. This comprehensive approach comes after the government carefully considered both the legal ramifications of the judgment, delivered on July 7, 2026, and the administrative hurdles anticipated in its execution.

A key component of the government's response is the development of a phased intention-registration and appointment model by the Department of Home Affairs (DHA), slated for full implementation by November 10, 2026. This innovative South Africa Home Affairs asylum registration system aims to streamline the initial stages of the asylum process. Under the proposed framework, individuals intending to seek asylum will register their intent via an online platform, subsequently receiving a receipt. This receipt will contain essential personal and biometric data, a unique reference number, and details for a scheduled appointment at a designated Refugee Reception Office.

The Constitutional Court's judgment, which prompted these governmental actions, declared specific provisions of the Refugees Act unconstitutional. These now-invalidated sections had previously permitted immigration officials to deport an asylum seeker solely for being present in the country without a transit visa. A transit visa, in this context, is a document issued at a port of entry, specifically designed to allow an individual to travel to a refugee reception center to formally apply for asylum. The court's decision highlighted a critical gap in the legal framework, exposing asylum seekers to potential deportation before they could even initiate their claims.

Following extensive legal consultations, the government has been advised that it possesses the legal standing to approach the courts for a supervisory order. This order would enable the judiciary to oversee the ongoing implementation process and provide crucial South Africa asylum ruling court guidance on the necessary measures to give effect to the judgment. IMC Chair Mmamoloko Kubayi emphasized that the government's objective in seeking this guidance is not to delay compliance with the ruling. Instead, it aims to ensure effective and sustainable compliance, serving both the administration of justice and the broader public interest. A supervisory order could also grant a suspension period, allowing the Department of Home Affairs to bolster its administrative, human resource, infrastructure, and processing capabilities, which are vital for the successful implementation of the Constitutional Court asylum judgment.

The introduction of the new South Africa Home Affairs asylum registration system carries significant implications for asylum seekers, particularly regarding protection against refoulement. The IMC has clarified that this system will operationalize the legal protection against refoulement, which is the forced return of an individual to a place where they face persecution or serious harm. This crucial protection legally attaches the moment a person declares their intention to seek asylum. The receipt issued under the new system, while not a Section 22 visa or recognition of refugee status, will serve as definitive proof of this declared intention.

Consequently, the Department of Home Affairs will issue directives to its officials and the Border Management Authority (BMA), instructing them that individuals holding valid receipts must not be removed, refouled, arrested, or detained solely for lacking a visa while their applications are pending final determination. Similar instructions are expected to be extended to the South African Police Service and the Department of Correctional Services, reinforcing this protective measure across various state agencies. This commitment underscores the government's dedication to upholding the Constitution, the rule of law, and South Africa's national and international obligations towards refugees and asylum seekers. The Inter-Ministerial Committee on Migration acknowledges the need to balance compliance with the court order and addressing the concerns of South African citizens, a balance they believe can be achieved with time and patience, which they will formally request from the court and from the public.

Lawyers and compliance officers must prepare for the new phased asylum intention-registration and appointment system by 10 November 2026, understanding its implications for initiating asylum claims and the temporary protection against refoulement provided by the registration receipt. They should also closely monitor the Constitutional Court's forthcoming guidance on the implementation of the asylum judgment, as this will shape the operational framework and potential timelines for compliance.

Source: Original reporting via government media briefing