On 7 July 2026, the Constitutional Court handed down an important judgment in Scalabrini v Minister of the Department of Home Affairs (DHA), confirming that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 are unconstitutional and invalid. The case was brought by the Scalabrini Centre of Cape Town and its trustees against the Minister of Home Affairs, the Director-General of the Department of Home Affairs and other respondents.
The central issue to be determined in this case was whether asylum seekers could be excluded from South Africa’s refugee protection system because they had not complied with certain procedural immigration requirements, such as entering through a designated port of entry, holding an asylum transit visa or reporting to a Refugee Reception Office within five days. The Constitutional Court ruled that procedural non-compliance cannot operate as a bar to an asylum application where the merits of the person’s claim have not been considered.
The judgment reaffirms the principle of non-refoulement, which prohibits the return of a person to a country where they may face persecution, torture or other serious human rights violations. The Court emphasised that asylum seekers are protected by this principle until their claims have been finally determined through a proper merits-based process. In other words, the “shield” of non-refoulement may only be lifted after the substance of the asylum claim has been assessed, and not merely because the asylum seeker has failed to comply with a procedural requirement.
The Court found that the impugned provisions operated as procedural filters that could prevent asylum seekers from accessing the refugee determination process altogether. This created a real risk that people with valid claims for protection could be returned to countries where they may face persecution or serious harm, without any assessment of whether they in fact qualified for refugee status.
A further concern was that the provisions gave immigration officials and Refugee Status Determination Officers broad discretion without adequate guidance. The Act required asylum seekers to show “valid reasons”, “good cause” or “compelling reasons” for procedural non-compliance but did not clearly define those standards or explain how they should be applied. The Court held that this created uncertainty and opened the door to arbitrary and inconsistent decision-making.
The Constitutional Court considered the effect of the provisions on children. The Helen Suzman Foundation, admitted as amicus curiae, argued that children of asylum seekers could be exposed to deportation where their parents failed to satisfy procedural requirements, even though the children’s own protection needs had never been assessed. The Court recognised that this infringed children’s constitutional rights, including the principle that a child’s best interests are of paramount importance in every matter concerning the child.
This judgment has significant practical implications. It confirms that the asylum system must remain accessible to persons seeking protection, even where there has been procedural irregularity in the manner of their entry into or presence in, South Africa. DHA may still regulate immigration and administer the asylum system, but it may not do so in a manner that prevents asylum seekers from having their claims assessed on the merits.
The decision is a strong reminder that immigration control must be exercised consistently with constitutional rights and South Africa’s international law obligations. The Court emphasised that administrative convenience, border-control objectives or procedural non-compliance cannot justify measures that undermine the core protection against non-refoulement.
The Constitutional Court’s decision marks a significant development in the protection of asylum seekers' rights in South Africa. By confirming the invalidity of the impugned provisions, the Court reaffirmed the central role of the principle of non-refoulement and underscored that asylum seekers must be afforded a meaningful opportunity to have their claims assessed on the merits. The judgment strengthens safeguards for vulnerable individuals and reinforces the requirement that South Africa’s asylum system be administered through clear, fair and constitutionally compliant procedures.
This judgment comes at a critical time in South Africa, where public discourse around migration is increasingly shaped by anti-migrant rhetoric and heightened scrutiny of foreign nationals. Against that backdrop, the Court’s decision is an important affirmation that constitutional protections and international refugee-law obligations cannot be displaced by political pressure, public sentiment or administrative expediency. It reinforces that asylum seekers must be treated as rights-bearing individuals whose claims require careful, fair and merits-based determination.
If you have any questions regarding the implications of this judgment or assistance with asylum or refugee-related matters, please contact a member of Fasken’s Pro Bono team.
This article was co-authored by Partner Sushila Dhever, Associate Andile Msane-Hlalele and Candidate Attorney Sive Ntanjana.
