ConCourt strikes down Refugees Act provisions blocking asylum claims

The Constitutional Court has ruled that several provisions of the Refugees Act are unconstitutional because they prevent asylum seekers from having their claims considered on their merits solely because of immigration-related procedural failures.

In a judgment delivered on Tuesday, the Constitutional Court confirmed an order by the Western Cape High Court that declared sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act inconsistent with the constitution and invalid. The apex court also ordered the minister of home affairs and other respondents to pay the applicants legal costs, including the costs of two counsel.

The case was brought by the Scalabrini Centre of Cape Town, which argued that the disputed provisions prevented people from seeking asylum if they had entered or remained in South Africa irregularly, even when they might qualify for refugee protection.

At the centre of the dispute was the principle of non-refoulement, which prohibits countries from returning people to places where they may face persecution or serious harm. The court found that procedural non-compliance cannot justify denying asylum seekers the opportunity to have their claims assessed on their merits.

The judgment noted that before amendments to the Refugees Act came into force in 2020, delays in applying for asylum or irregular entry into South Africa did not automatically prevent someone from entering the asylum system. Instead, those factors could be considered later when assessing the credibility of a claim. The amended law fundamentally changed that position by introducing procedural barriers before an asylum application could be heard.

The court found the challenged provisions were constitutionally deficient for several reasons. It held that they irrationally allowed asylum seekers to be disqualified on procedural grounds without serving a legitimate government purpose, granted immigration officials overly broad discretion without adequate legal guidance, and excluded a proper assessment of whether applicants faced danger in their countries of origin, thereby violating the principle of non-refoulement.

The judgment also highlighted the impact on children. It found that children of asylum seekers could be deported alongside their parents without any assessment of the merits of their own asylum claims if their parents failed to satisfy procedural requirements. The court agreed that this unjustifiably limited children’s constitutional rights and failed to place their best interests first.

The department of home affairs, which opposed the application, argued that the provisions were intended to regulate unlawful migration while still allowing asylum seekers to apply through a condonation process. It also contended that the legislation struck an appropriate balance between immigration control and refugee protection.

However, the Constitutional Court rejected those arguments. It also criticised the department’s handling of the litigation, finding that it had failed to properly apply for leave to appeal against the high court’s ruling on the related regulations and describing its procedural conduct as “a lamentable display of remarkable gross ineptitude and egregious laxity”.

The ruling reinforces South Africa’s constitutional and international obligations to ensure that people seeking asylum are not denied protection simply because they failed to comply with immigration procedures before their claims have been properly considered.

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