Constitutional Court confirms Refugees Act provisions unconstitutional

The Constitutional Court has confirmed an order of the Western Cape High Court declaring sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 unconstitutional and invalid. The unanimous judgment, handed down on Tuesday, 7 July 2026 and penned by Majiedt J, means that asylum seekers can no longer be excluded from the asylum system solely because of procedural non-compliance relating to their immigration status, manner of entry into South Africa, or failure to report to a Refugee Reception Office within the prescribed period.

The case was brought by the Scalabrini Centre of Cape Town and its trustees against the Minister of Home Affairs, the Director-General of Home Affairs, the Chief Director of Asylum Seeker Management, the Refugee Appeals Authority of South Africa and the Standing Committee for Refugee Affairs. The Helen Suzman Foundation, Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the United Nations High Commissioner for Refugees were admitted as amici curiae.

According to a post-judgment media summary issued by the Constitutional Court, the challenged provisions operated as procedural filters. They allowed asylum seekers to be disqualified from refugee status because of immigration-related procedural non-compliance before their claims were assessed on the merits. The High Court had found that this regime prevented access to a merits-based determination and was particularly harmful to children.

The Constitutional Court agreed. It held that the provisions are inconsistent with the principle of non-refoulement, which protects asylum seekers against being returned to a country where they may face persecution or serious harm unless and until their claims have been finally rejected after a proper merits-based process. The protection applies before formal recognition as a refugee, because a person may in substance be a refugee even before that status has been formally determined.

Section 21(1B) vague and irrational

The Court considered section 21(1B) in two ways. First, read together with regulation 8(3), it found that the provision creates a threshold process that may prevent an asylum seeker from entering the asylum system before the merits are considered. The Court held that this scheme creates multiple and confusing standards, requiring asylum seekers to show “valid reasons”, “good cause” or “compelling reasons” at different stages to different officials for substantially the same procedural non-compliance. None of these standards is adequately defined, creating a real risk of arbitrary and inconsistent decision-making.

Second, considered in isolation, section 21(1B) was found to be vague and functionally ineffective. It requires an immigration officer to interview an applicant to determine whether “valid reasons” exist for the absence of an asylum transit visa, but does not explain what counts as a valid reason, how the enquiry must be conducted, or what legal consequence follows. The Court held that this permits an arbitrary exercise of public power and fails on rationality.

The Court also accepted that the provisions have serious consequences for children. Where a child’s asylum claim is tied to that of a parent, the child may be excluded from the asylum system because of the parent’s procedural non-compliance, without an individual assessment of the child’s circumstances and without proper regard to the child’s best interests, contrary to section 28 of the Constitution.

Regulations invalid but not before the Court

The High Court had also declared regulations 8(1)(c)(i), 8(2), 8(3) and 8(4) of the Refugee Regulations unconstitutional and invalid. The Constitutional Court noted that the respondents purported to appeal against that declaration but used the incorrect procedure. Declarations of invalidity concerning regulations do not require confirmation by the Constitutional Court. A party wishing to challenge such a declaration must bring a proper application for leave to appeal under rule 19 of the Court’s Rules. The respondents instead relied on rule 16 and section 172(2)(d) of the Constitution, which concern confirmation proceedings relating to Acts of Parliament, provincial Acts and conduct of the President. The purported application was also substantially out of time, and no application for condonation was filed. The regulations therefore remain invalid and were treated as having no legal force, though the Court considered them in a limited way to understand how the statutory scheme was intended to operate.

The respondents argued that Scalabrini’s challenge was abstract and should not be entertained. The Court rejected this, holding that Scalabrini had placed extensive evidence before the High Court from affected persons, experts and community stakeholders, providing a sufficient factual foundation. The Court added that even where a challenge is abstract, courts may in appropriate circumstances consider facial constitutional challenges to legislation, particularly where rights are threatened.

The Court also addressed reliance on previous judgments. It held that Ruta and Abore confirmed the importance of non-refoulement and the need for merits-based assessment, while Ashebo is distinguishable because it concerned detention at an earlier stage of the asylum process and deliberately left open the question whether the impugned provisions are unconstitutional.

Costs and concerns

The respondents did not seek a suspension of the declaration of invalidity or any reading-in order. The Court therefore confirmed the declaration of invalidity. It ordered the respondents to pay the applicants’ costs, jointly and severally, including the costs of two counsel.

The Court observed that the respondents litigated poorly in relation to their purported challenge to the High Court’s order declaring the regulations invalid. Their failure to follow the proper procedure, their delay, and their failure to seek condonation were matters of serious concern.

The Court further expressed concern about sweeping and unsupported assertions made during argument regarding Afghani and Bangladeshi nationals’ involvement in human trafficking in South Africa. It held that such assertions, made without an evidentiary foundation, undermined the integrity of the State’s case and risked promoting prejudicial narratives about refugees and asylum seekers. This conduct was deserving of strong deprecation.

What it means

For asylum seekers in South Africa, the ruling means that their claims must now be assessed on their merits, regardless of procedural non-compliance. They cannot be turned away from the asylum process solely because they entered the country through an undesignated port of entry, failed to report within five days, or lacked an asylum transit visa. The decision brings the Refugees Act into line with the principle of non-refoulement and the Bill of Rights.

The judgment is final. The declaration of invalidity takes effect immediately, as no suspension was sought. The Department of Home Affairs will now need to adjust its procedures to ensure that asylum seekers are not disbarred without a merits-based assessment. The regulations declared invalid by the High Court remain without legal force, and any future challenge to them would need to follow the proper appeal process.

This report is based on the Constitutional Court’s post-judgment media summary, which is an explanatory note provided to assist the media and is not binding on the Court. The full judgment is available.