Court finds procedural barriers in Refugees Act violated non-refoulement principle, ruled against home affairs department.
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The Constitutional Court confirmed on Tuesday that key sections of the Refugees Act were unconstitutional, in a judgment that found asylum seekers could not be shut out of the asylum system purely over procedural failures.
The case, between Scalabrini Centre of Cape Town and Another and Minister of Home Affairs and Others, arose from an application to confirm an order made by the Western Cape High Court, which had already declared sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 invalid.
According to the ConCourt, the case centred on “whether asylum seekers may be prevented from having their claims determined on the merits 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.”
(1/3) Judgment on Tuesday 7 July 2026 at 10h00: The order of the High Court of South Africa, Western Cape Division, Cape Town, declaring sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 inconsistent with the Constitution and invalid, is confirmed.
– Constitutional Court (@ConCourtSA) July 7, 2026
Court sides with Scalabrini over disbarment claims
Scalabrini had argued in the High Court that the challenged provisions created what it called a “disbarment regime,” under which asylum seekers could be excluded from the system without ever having their claims assessed.
According to the ConCourt, Scalabrini submitted this “violates the principle of non-refoulement, the Bill of Rights and international law.”
The High Court agreed, and its findings were confirmed unanimously by the ConCourt.
The court rejected the state’s objection that the challenge was too abstract to be considered, noting that Scalabrini had placed “extensive evidence before the High Court from affected persons, experts and community stakeholders,” which gave the case a solid factual basis.
Non-refoulement principle central to ruling
On the merits, the court found that sections 4(1)(f), 4(1)(h) and 4(1)(i) acted as procedural filters that disqualified people from refugee status before their claims were ever considered.
This, the court said, conflicted with the principle protecting asylum seekers “against being returned to a country where they may face persecution or serious harm” before a proper merits-based process had run its course.
The judgment also noted that “procedural non-compliance, even where serious, cannot justify disbarment from the asylum system without a merits-based assessment.”
The state’s reliance on prior rulings, including Ruta, Abore and Ashebo, was dismissed, with the court finding those cases either reinforced the need for merits-based assessment or were simply not relevant to the current dispute.
Section 21(1B) found vague and arbitrary
Turning to section 21(1B), the court found that the provision failed on its own terms as well, since it gave immigration officers the power to interview applicants without any real guidance.
The judgment stated that the section did not explain “what counts as a valid reason, how the enquiry must be conducted, or what legal consequence follows from the outcome of the interview,” and for that reason amounted to “an arbitrary exercise of public power.”
The court also raised concerns about children affected by the law, saying a child’s asylum claim tied to a parent’s could be denied “without an individual assessment of the child’s circumstances,” in breach of constitutional protections for children.
Costs awarded against home affairs department
The court confirmed the declaration of invalidity in full and ordered the respondents to pay the applicants’ costs, including those of two counsel.
Judges criticised the department’s legal team further, saying unsupported claims made during argument about Afghan and Bangladeshi nationals and human trafficking were “deserving of strong deprecation.”
