The first week of the final quarter was busier than anyone expected. In the space of a few days, the Minister waived a rule that has caused real harm since January, and the Department opened its asylum system and then closed it again. Meanwhile, foreign children born in South Africa remain in a space no regulation covers. We take each in turn.
1. The 60-day rule: waived, but not undone
On 2 October 2026 the Minister of Home Affairs signed Immigration Directive No 13 of 2026. It grants a blanket waiver under section 31(2)(c) of the Immigration Act of two provisions: regulation 9(8)(c), which requires extension applications to be lodged no less than 60 days before the existing visa expires, and regulation 9(5)(a), which imposes the same requirement on change of status or conditions applications.
The Minister's stated reason is the "unintended consequences" of applying these sub-regulations. The waiver covers three groups:
- extension and change of status applications still pending adjudication;
- pending appeals where the only ground of refusal was late submission; and
- all future applications.
The one condition is that the application must be lodged while the existing visa is still valid. If it is not, section 32(1) of the Act, read with regulation 30(1), applies.
We welcome the directive. It is also an admission. If the rule had consequences serious enough to justify a blanket waiver, then those consequences fell on real people. Since January, applicants have been refused for lodging inside the 60-day window even though their visas were valid when they applied. Families were left without status, employees could not lawfully work, and employers lost staff.
The directive says nothing about these people. It reaches pending applications and pending appeals, but not refusals that have already become final, whether because the appeal was dismissed, no appeal was lodged, or the applicant has since left the country. Nothing in the reasoning behind the waiver distinguishes a pending refusal from a final one. The rule was equally unworkable in both cases.
For applicants in that position, the options are:
- an appeal relying on the directive, where the appeal period has not yet run;
- an individual waiver application under section 31(2)(c);
- a good cause application, where status has since lapsed; and
- judicial review under the Promotion of Administrative Justice Act, where the refusal rested solely on the 60-day rule. Review applications are subject to the 180-day time limit, so delay is costly.
A word of caution. A waiver is not an amendment. Regulations 9(8)(c) and 9(5)(a) remain on the books, and a waiver granted by directive can be withdrawn the same way. Our advice is still to apply early, but no applicant should now be refused only because they applied inside 60 days.
2. Children born in South Africa: still no rules
A foreign national child born in South Africa does not acquire status through birth registration. The Immigration Regulations do not set out how, or by when, such a child must regularise their stay. This remains an unregulated space.
In practice, a position has formed anyway. From recent refusals and from our conversations with some Departmental officials, the working rule appears to be as follows:
- the child's visa application must be lodged within the first year after birth; and
- it must also be lodged within 90 days of the child's passport being issued.
Older children are being told to obtain a letter of good cause first. This has no legal basis. The good cause process under section 32, read with regulation 30, exists for a person whose status has expired. A child born in South Africa who has never held a visa has no expired status to regularise. The Department is applying a remedy designed for one category of person to a different category it was never meant to cover. The result is that children are penalised for a gap in the regulations that the Department itself has not closed.
Our practical advice to parents is to apply for the child's passport as soon as the birth is registered, to keep proof of the passport's issue date, and to lodge the visa application well inside both windows. Parents of older children should seek advice before approaching the Department. The relevant facts differ from case to case.
There is also an irony here. The Minister has just used section 31(2)(c) to issue a blanket waiver on the 60-day rule. The same power could be used to issue a clear directive for children born here. We would welcome it.
3. Asylum: a department at odds with itself
On 7 July 2026 the Constitutional Court handed down the Scalabrini judgment. It declared unconstitutional the provisions of the Refugees Act that allowed asylum seekers to be deported for entering without a transit visa.
On 28 September the Director-General issued a directive instructing all Refugee Reception Offices to accept new asylum applications. Within days the offices were overwhelmed, long queues formed, and anti-immigrant groups protested outside reception offices, with violence in Durban and Soweto. On 9 October the Director-General withdrew the directive. The Department's statement said it had been issued without the knowledge of, or consultation with, the Minister or any other political office-bearer.
On 11 October the Inter-Ministerial Committee on Migration announced the following:
- Government will ask the court for a supervisory order and a suspension period to build the capacity it needs to comply.
- An online intention-to-apply registration and appointment system is to be introduced by 10 November 2026.
- A registration receipt will protect its holder against refoulement, and against arrest solely for being in the country without a visa. It will not be a section 22 visa.
- A full bench of the Gauteng High Court will hear the matter of two conflicting directives on 29 October.
Consider the sequence. A Director-General implemented a Constitutional Court order affecting tens of thousands of people without the Minister's knowledge. The directive was then withdrawn within eleven days. Government is now asking the court for guidance three months after judgment. In the same week, the Minister personally signed a waiver on visa timelines.
There are only two ways to read this. Either the administration and the executive are working at cross purposes, or the Department is disorganised. Neither reading is reassuring. Withdrawing the directive does not withdraw the judgment, which remains binding. Asylum seekers, and employers who depend on lawful documentation, are left in uncertainty until at least late October.
We will report on the 29 October hearing and on the registration system as details emerge.