Why Home Affairs Must Still Receive Some Asylum Seekers Even When the Border Was Crossed Unlawfully

South Africa’s immigration rules and constitutional obligations have collided in a very visible way. According to Newsroom ZA, hundreds of people gathered outside Home Affairs’ Refugee Reception Centre in Durban after the department put a new directive into effect. That instruction requires refugee offices to receive people who say they want to apply for asylum, even if they entered the country unlawfully, crossed outside a port of entry, have no visa, or did not report within the required period.

That has fed public anger and political accusations, with some claims suggesting the Constitutional Court has effectively opened South Africa’s borders. Newsroom ZA says that is not what happened. The issue is narrower and more technical: the state has been told to let certain people into the asylum process so that their claims can be assessed before the government decides what to do with them.

The court case at the centre of the dispute was the July judgment in the Scalabrini Centre matter. Newsroom ZA reports that the court dealt with procedural failures, not with a blanket right to enter South Africa. The key point was that a person cannot be kept out of the asylum system simply because of an administrative or entry-related failure, if that would prevent the person’s claim from being heard at all before it is judged on its merits.

That approach links to the principle of non-refoulement. In plain language, it means South Africa cannot send someone back to a place where they may face persecution or serious harm before their protection claim has been properly determined. The court’s concern was therefore about timing and fairness in the handling of asylum claims, not about removing border controls altogether.

This is where the public debate can become muddled. Illegal entry and a right to have an asylum claim considered are not the same thing. Newsroom ZA makes the distinction clear: a person may have entered the country unlawfully and still be entitled to have an asylum claim heard. But that does not mean the person has already been accepted as a refugee, and it does not automatically give them permanent permission to stay.

In other words, Home Affairs still has to do the assessment. The department must first process the claim and decide whether it is genuine. That is where the pressure now sits. Newsroom ZA notes that Home Affairs has warned the change could place heavy strain on an asylum system that is already under pressure, and the scenes in Durban show how quickly that pressure can spill into long queues and public frustration.

For South Africans watching the issue unfold, the core confusion is understandable. The border may still be closed in the ordinary sense, but the legal door to the asylum system cannot be shut before a claim is properly heard. The court’s ruling is not a free pass into the country. It is a requirement that the state separate a person who broke immigration rules from a person who may have broken them while fleeing danger.

That distinction is now the test facing Home Affairs. Newsroom ZA frames it as a practical challenge as much as a legal one: can the department tell the difference between someone who should be refused and someone whose claim deserves protection under the Constitution? The answer matters not only in court, but in the queue outside the reception centre.