The Department of Home Affairs has instructed refugee reception offices to accept asylum applications from people seeking protection even if they entered South Africa illegally, entered outside an official port of entry, do not possess a visa, or failed to declare an intention to seek asylum when they arrived.

The directive, signed by the department’s acting director general Thulani Mavuso at the end of September, instructs every refugee reception office to “receive every person who reports in person and indicates an intention to apply for asylum”. Successful lodging of an application allows the applicant to receive an asylum seeker visa while the claim is considered.

The change follows a Constitutional Court judgement handed down in early July in a case brought by the Scalabrini Centre of Cape Town. The court declared several provisions of the Refugees Act unconstitutional because procedural failures, including unlawful entry or failing to report within the required period, could prevent an asylum claim from being considered on its merits.

The court did not rule that people entering South Africa illegally automatically qualify for refugee status. It found that unlawful entry cannot itself prevent a person from applying for asylum, after which their claim must still be assessed.

ActionSA has raised concerns about how the directive will operate in practice, particularly while applications are being processed.

“The practical consequences of this directive will be disastrous for South Africans if implemented through a broken asylum system that is already overwhelmed,” ActionSA parliamentary chief whip Lerato Ngobeni said.

The party wants asylum seekers accommodated in dedicated processing centres while their identities and claims are assessed, alongside biometric registration and stricter processing deadlines. It has also called for people whose applications are rejected to be repatriated once the available legal processes have been exhausted.

The Department of Home Affairs has stressed that the change was not initiated by the department. It said on Wednesday that it had opposed the Scalabrini case but was constitutionally required to implement the binding judgement.

The directive therefore changes who may enter the asylum application process, rather than who ultimately qualifies as a refugee. The pressure will now fall on Home Affairs to process those applications and determine claims without allowing an already strained system to accumulate further delays.