28 October 2026
Anti-immigrant vigilantes harassing asylum seekers at the Durban Home Affairs office on 6 October. Archive photo: Joseph Bracken
The Department of Home Affairs has doubled down on its position that asylum seekers who have not yet applied for asylum are “illegal” foreigners and can be detained.
This was the department’s main submission to a full bench of the Gauteng High Court, which was specially convened by Gauteng Judge President Aubrey Ledwaba to determine how judges should approach a Constitutional Court ruling handed down in July.
The full bench will hear arguments in Johannesburg on Thursday.
The apex court’s ruling, in a case brought by the Scalabrini Centre of Cape Town, had set aside laws that the court said created an “unlawful procedural barrier” to the asylum system. 
These laws, introduced in 2020, required asylum seekers who had entered the country illegally to show “good cause” for why they did not have valid documents, before being allowed to enter the asylum system.
In the wake of this year’s anti-immigrant campaigns, the Gauteng High Court was flooded with applications from people, many of whom were detained at Lindela Repatriation Centre, seeking to be released.
The judges who dealt with these applications have since handed down conflicting rulings based on the Scalabrini judgment. Judge Stuart Wilson ordered that a person detained for breaking immigration laws should be immediately released if they say they wish to apply for asylum.
But Judge Mandlenkosi Motha said such people should not be deported, but could remain detained. That judge directed that the applicants be processed for asylum at either Lindela or the nearest Refugee Reception Office (RRO).
Ledwaba invited any interested party to apply to be amici curiae (friends of the court) and make submissions. He directed that the court hold over all pending immigration matters until the outcome of the full-bench inquiry.
The department, in its written submission, argued that continued detention is lawful and the “protections” offered by the Refugees Act only kick in once a formal application has been made, not just an “intimation” of a desire to apply.
It said every detainee at Lindela Repatriation Centre was held under judicial authorisation. After a person has said they want to apply for asylum, whether detention may continue must be decided by a judge.
But the department conceded that it does not have the administrative capacity to deal with asylum seeker applications.
Some amici had proposed that the full court issue a directive requiring RROs to receive an asylum application on the same day or within five working days of an immigrant saying they want to apply for asylum.
“The evidence shows that this cannot be done,” the department said in its submission.
After the department directed RROs, effectively closed for six years, to start accepting asylum applications again late last month, the offices were overwhelmed.
“On October 5, about 2,549 people presented at our offices which have a combined ordinary capacity of about 104 applications a day. 82 applications could be lodged and 786 appointments were given, some extending to February 2027,” it said.
The decision to reopen the offices was then “withdrawn for operational capacity, safety and national interest” reasons.
Mass protests initiated by anti-immigration movement March and March had led to scenes of violence at offices in Durban and Pretoria.
March and March, too, has made submissions to the court, arguing that releasing undocumented people from detention would “result in chaos in the administration of justice and will raise tensions which are already palpable due to the uncontrolled influx of illegal immigrants into the country.”
Contraventions of the Immigration Act were “by their very nature serious offences”. If the “intention to apply” were the only requirement, it would “open the floodgates for illegal foreigners to undermine the rule of law,” the organisation said.
But others have cautioned against politicising the issue. The Wits Law Clinic argued that detention of asylum seekers is unlawful and that advancing a “purely political agenda” as an amicus is “inappropriate”.
The Consortium for Refugees and Migrants in South Africa, along with Refugee Social Services, said public opinion and anti-migrant views were no basis to circumvent the law.
In their written argument, they said most applicants fleeing persecution in Ethiopia, Cameroon and the Democratic Republic of Congo, who wished to apply for asylum, were faced with “administrative paralysis and bureaucratic inertia”.
Many had been “turned away at the door” of RROs and told that new applications were not being considered.
The department had conceded it was not accepting any applications for asylum from those who, in its view, had entered for reasons other than to seek asylum or who had applied after being arrested and detained.
The refugee organisations said the September chaos was a result of an accumulated backlog, which was the fault of the department.
“Globally, fear-mongering and anti-migrant discourse threatens to blur the lines between administrative immigration processes and the criminal justice system. This has led to the phenomenon of ‘crimmigration’ - the criminalisation of immigration law - where the two areas of law have been inappropriately merged to penalise migrants,” they said.
They argued that international law prohibits the detention of asylum seekers during processing and that asylum seekers who are detained should be released.
Kopanang Africa Against Xenophobia and the Scalabrini Centre of Cape Town, in their joint submission, conceded that every system has its “bad actors” and not all illegal foreigners are in South Africa in pursuit of asylum, but argued that a core principle of refugee law was that asylum seekers must be treated as presumptive refugees until the merits of their claim had been finally determined.
“This principle exists to guard against precisely the kinds of conduct seen in this matter: in which governments place barriers in the way of those seeking asylum. And then justify such barriers by arguing that they have not been formally included in the system. It’s a bootstrap argument,” they said.
They said the Immigration Act only allowed for detention ahead of deportation. Under the principle of non-refoulement, people applying for asylum may not be deported until their applications are finally rejected.
“This raises the obvious question which [the department] fails to answer,” the organisations said. “Why are these people being detained? Even if one sets aside the legalities, what rational public purpose is being served by detaining people who, on all versions, are not to be deported but are merely awaiting the day when the [department] has the administrative capacity to assist them?”
They said the law allows for someone who is believed to be in the country illegally to be detained for up to 48 hours for the purposes of identification.
“Thereafter officials are vested with powers to detain for deportation or on criminal charges (unrelated to immigration laws).” This did not apply to undocumented foreigners who had said they wanted to apply for asylum. Like all persons under the Constitution, they were entitled to their immediate liberty and freedom, the organisations said.
The United Nations High Commissioner for Refugees acknowledged the “substantial administrative burdens and practical difficulties the department and the State face in receiving and determining asylum claims”, but said these difficulties “require workable arrangements” and “cannot make a claimant’s freedom dependent on the department’s capacity to arrange transport, secure an appointment or issue documentation.”