Introduction
The Constitutional Court’s recent judgment in Scalabrini Centre of Cape Town and Others v Minister of Home Affairs and Others[1] is about more than the technicalities of South Africa’s asylum system. It raises a broader question: what happens when administrative discretion operates in an environment shaped by public pressure, political sentiment and heightened social tensions?
The judgment provides an important reminder that decisions affecting vulnerable individuals cannot be driven by rhetoric or unchecked discretion. They must remain grounded in law, evidence and the constitutional principles that govern our society at large.
The timeliness of this judgment is particularly noteworthy, occurring against a backdrop of heightened public discourse concerning foreign nationals without formal documentation evidencing lawful residence within South Africa, and the nationwide call for their voluntary departure by 30 June 2026, failing which, they would face forcible removal by private citizens.
Background
In May 2025, the High Court declared sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 unconstitutional, following a challenge brought by the applicants. The applicants contended that the impugned provisions effectively barred foreign nationals from applying for asylum if they held an adverse immigration status, solely due to their failure to comply with certain procedural requirements.
The applicants, supported by international amicus curiae, argued that the provisions unjustifiably limited several constitutional rights and were inconsistent with South Africa’s international obligations in relation to the principle of non-refoulement. Furthermore, they contended that where children were concerned, the provisions failed to afford paramount importance to their best interests, as required by section 28(2) of the Constitution.
The Principle to Non-refoulement – Protection Against Forcible Expulsion or Return
Section 2 of the Refugees Act gives effect to the international principle of non-refoulment by providing that no person may be refused entry into the Republic, expelled, extradited, or returned to any other country, or be subject to any similar measure, if such action will result in that person:
- facing persecution on account of race, religion, nationality, political opinion, or membership of a particular social group; or
- being exposed to threats to his/her life, physical safety, or freedom arising from external aggression, occupation, foreign domination, or events seriously disturbing public order.
As a signatory to various international treaties and instruments, particularly the 1951 Convention Relating to the Status of Refugees and the African Charter on Human and Peoples’ Rights, South Africa, and by extension South African citizens, are obligated to uphold the principle of non-refoulment.
Article 33(1) of the Convention confirms that protection against refoulement is afforded to all refugees, irrespective of the lawfulness of their presence in the host country. Similarly, Principles 20(3) and 20(4) of the African Guiding Principles Commission[2] interprets the Convention to preclude the return of an individual to a country where they may face the real risk of irreparable harm to a fundamental right.
The High Court emphasised that the asylum application system remains open and accessible to all individuals who seek its protection, notwithstanding how or when they entered the Republic. This is consistent with various international instruments, which unequivocally recognises that a person who satisfies the criteria for refugee status is, in principle and fact, a refugee before the formal recognition of that status by a state has been reached.
In essence, the Republic may not deny a person entry into the country, or access to the asylum process, or remove them from the country when they seek international protection on the basis that they face persecution or a real threat to their life, safety, or freedom in their country of origin.
The practical effect of the impugned provisions
Prior to the 2020 amendments, asylum seekers seeking to apply for refugee status would ordinarily present themselves at a designated port of entry into South Africa where they must claim asylum and obtain an asylum transit visa issued under section 23 of the Immigration Act, which is valid for five days. The purpose was to afford a refugee sufficient time to travel to the nearest Refugee Reception Office (“RRO”) to lodge an asylum application and thereafter be issued with a section 22 visa, pending final determination of their claim on its merits.
Where an applicant delayed presenting themselves to an RRO or entered South Africa irregularly, the credibility and authenticity of their claim would be impacted and taken into account during the substantive assessment of the asylum application. These two factors, considered in isolation, were not determinative of the application itself.
The impugned sections, read together with the Regulations, fundamentally altered the application process by introducing new preliminary hurdles which applicants are required to overcome before being granted access to the asylum application system:
- Section 21(1B) provides that where an applicant is not in possession of an asylum transit visa, they must be interviewed by an Immigration Officer to determine whether “valid reasons” exist for not being in possession of such a visa.
- Regulation 8(3) provides that where an applicant presents themselves to an RRO without a valid visa, they must demonstrate “good cause” for their irregular entry or stay prior to being permitted to apply for asylum.
- Section 4(1)(f), (h), and (i) provides that an asylum seeker does not qualify for refugee status if the Refugee Status Determination Officer (“RSDO”) has reason to believe that they have committed an offence in relation to travel or identity documents, or cannot provide “compelling reasons” for crossing the border through means other than a designated port of entry, or for failure to report to an RRO within five days of entry.
The stark contrast between the pre-amendment and post-amendment process raises the question of whether regard was had to South Africa’s constitutional and international obligations and the principles underpinning international refugee law.
Article 33 of the 1951 Convention permits a departure from non-refoulement only where there are grounds to believe that the applicant is a danger to the security of the host country, or where, having been convicted of a particularly serious crime, the applicant poses a danger to the community. The impugned provisions introduced exclusionary mechanisms that bear little to no resemblance to these internationally recognised exceptions.
The Constitutional Court’s Three Main Criticisms of the Impugned Provisions
The Constitutional Court identified several deficiencies in the impugned provisions, with the following three main criticisms emerging from the judgment:
- Section 21(1B) fails the rationality test as it serves no legitimate governmental purpose
Section 21(1B) requires an immigration officer to determine whether an asylum seeker has “valid reasons” for not being in possession of an asylum transit visa. Critically, however, the provision is silent on the factors or criteria which should guide this determination.
The Constitutional Court found that the absence of such a criteria renders the inquiry inherently uncertain and creates an unjustifiable barrier to accessing the asylum system. It further demonstrates the absence of a justifiable basis upon which an applicant is disbarred from the asylum application, purely on account of procedural missteps.
When read with regulation 8(3), the Court found that the practical effect is to prevent an asylum seeker from progressing to a merits-based determination of their claim. Conversely, when read in isolation, the provision becomes meaningless, irrational, serve no discernible purpose and produces no legal consequences.
Resultantly, the Constitutional Court concluded that the provision permits the arbitrary exercise of power that is connected to no legitimate government purpose, therefore, failing on rationality and is unconstitutional.
- Sections 4(1)(f), 4(1)(h), 4(1)(i) confer discretionary powers without adequate safeguards
These provisions require an asylum seeker to show “compelling reasons” for irregular entry or delayed report to an RRO. While ultimately considering the same set of facts, section 4 imposes a higher threshold, again with incomplete criteria and legislative guidance.
The Court found that these varying standards, coupled with the absence of legislative criteria, create a real risk of arbitrary and inconsistent decision-making. The provisions effectively leave officials with broad and inadequately constrained discretion when determining whether an applicant may proceed to the asylum application process.
- Section 4(1)(f), 4(1)(h), 4(1)(i) excludes asylum seekers from a merits-based determination of their claims
By requiring an applicant to first provide “compelling reason” for irregular entry or a delay in reporting, and with acceptance laying largely at the discretion of the RSDO, the provisions effectively create a mechanism through which asylum seekers may be denied refugee protection and excluded from a merits-based determination for reasons that do not fall within the exceptions expressed in the 1951 Convention.
The Constitutional Court confirmed that until such time as an asylum application has been finally rejected following a merit-based determination, the asylum seeker remains entitled to the protection afforded by the principle of non-refoulement. The Court accordingly found these provisions unconstitutional.
Ultimately, the Constitutional Court found that the new process created several barriers that asylum seekers must overcome prior substantive assessment, effectively serving as a means of “gatekeeping” to reduce the number of applications to be determined in the later stages of the process.
Concluding Remarks
This article is not intended to suggest that all foreign nationals within the Republic are asylum seekers who have fled their countries of origin due to the threat of persecution. Rather, it highlights the profound consequences which may arise in the face of deficient legislative frameworks, particularly in matters involving the regulation and protection of the rights of vulnerable non-citizens, which are misaligned with both constitutional and international obligations.
MB welcomes this judgment as it serves as a reminder of the dangers inherent in conferring broad and unfettered discretionary powers upon administrative officials to determine asylum applications, particularly when personal sentiment can so easily seep into decisions that ought to be made strictly in accordance with the law.
At a time marked by economic hardship, social and political instability, and heightened public discourse concerning undocumented foreign nationals, the Constitutional Court’s confirmation reaffirms the fundamental constitutional principle that the rights of asylum seekers and refugees are to be protected notwithstanding prevailing political and social pressures. The Constitution requires that even the most vulnerable individuals, citizens and non-citizens alike, receive protection afforded by the law, particularly where the rights at stake concern human dignity, freedom, protection from persecution and children.
[1] [2026] ZACC 30.
[2] on Human Rights for All Migrants, Refugees and Asylum Seekers.
