Constitutional Court Stops Deportation of Asylum Seekers

The Constitutional Court of South Africa has delivered a landmark judgment, *Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others* [2026] ZACC 30, declaring several sections of the Refugees Act 130 of 1998 unconstitutional. The apex court unanimously ruled that asylum seekers cannot be deported solely due to a lack of transit visas or an inability to demonstrate "good cause" for their absence, thereby ensuring that all asylum claims are assessed on their merits. This decision reinforces the fundamental principle of *non-refoulement* and safeguards the constitutional rights of asylum seekers, including children, who were previously barred from accessing the asylum system due to procedural technicalities. The ruling mandates an immediate shift in the Department of Home Affairs' approach to asylum applications, prioritising substantive human rights over administrative hurdles.

In a pivotal decision for human rights and immigration law in South Africa, the Constitutional Court, in *Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others* [2026] ZACC 30, has unequivocally affirmed the right of asylum seekers to access the asylum system, irrespective of their initial entry method or possession of a transit visa. Handed down on 7 July 2026, the unanimous judgment by Justice Majiedt declared key provisions of the Refugees Act 130 of 1998 unconstitutional, effectively halting the deportation of individuals seeking refuge based on procedural non-compliance.

This ruling marks a significant victory for vulnerable individuals and human rights organisations, challenging the Department of Home Affairs' (DHA) previous interpretation and application of the Refugees Act. The Court's decision underscores South Africa's constitutional and international obligations to protect those fleeing persecution, ensuring that administrative technicalities do not override the fundamental right to seek asylum and the principle of *non-refoulement*. This article will delve into the background of the impugned provisions, analyse the Constitutional Court's reasoning, and explore the far-reaching implications for legal practitioners and the future of refugee protection in the country.

South Africa's legal framework for immigration and refugee protection is primarily governed by the Immigration Act 13 of 2002 and the Refugees Act 130 of 1998. The Refugees Act, in particular, was enacted to give effect to international legal instruments, principles, and standards relating to refugees, including the 1951 UN Convention Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. A cornerstone of this international framework, and indeed South African law, is the principle of *non-refoulement*, which prohibits states from returning individuals to countries where they face persecution or danger.

Prior to the recent amendments that came into effect in January 2020, any person who presented at a Refugee Reception Office could enter the asylum system, regardless of their initial entry point or legal status in the country. However, amendments to the Refugees Act introduced procedural filters, specifically sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B). These provisions had the practical effect of preventing asylum seekers from proceeding to a merits-based determination if they were in the country without a transit visa or could not provide "good cause," "valid reasons," or "compelling reasons" for its absence. This created a significant barrier, exposing individuals to deportation without their asylum claims being properly assessed, and was the subject of the challenge brought by the Scalabrini Centre of Cape Town.

The Constitutional Court's judgment in *Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others* [2026] ZACC 30 confirmed the Western Cape High Court's declaration of constitutional invalidity regarding sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act. Justice Majiedt, writing for a unanimous Court, found that these impugned provisions fundamentally altered the pre-amendment position by introducing procedural hurdles that effectively barred asylum seekers from accessing the asylum system. The Court held that requiring asylum seekers to demonstrate "good cause" or "valid reasons" for not possessing a transit visa, without clear legal guidelines or definitions for these terms, created a real risk of arbitrary and inconsistent decision-making by immigration officials.

The Court emphasised that procedural non-compliance cannot serve as a threshold requirement to deny access to the asylum system or to determine refugee status. This approach, the Court reasoned, violated the international legal principle of *non-refoulement*, which is enshrined in South African law and prohibits the return of individuals to countries where they face persecution. The judgment highlighted that the protection against persecution must take precedence over administrative technicalities.

Furthermore, the Constitutional Court specifically addressed the impact of these provisions on children. It found that the impugned sections unjustifiably limited the constitutional rights of children who were deemed "illegal foreigners," depriving them of their most basic rights and exposing them to a "double harm" by tying their legal status directly to their parents' procedural non-compliance. The Court's condemnation of the Department of Home Affairs for its "extremely poor" litigation and "unsupported assertions" regarding human trafficking further underscored the lack of a constitutionally sound basis for the challenged provisions. This judgment aligns with a broader trend in South African jurisprudence to uphold constitutional rights against administrative overreach, particularly concerning vulnerable populations.

The Constitutional Court's decision in *Scalabrini Centre of Cape Town* is a critical affirmation of human rights and the rule of law in South Africa. For legal practitioners, the immediate implication is that asylum seekers can no longer be summarily deported or denied access to the asylum process based on the absence of a transit visa or an inability to satisfy vague "good cause" requirements. This necessitates a review of all pending and past cases where asylum applications were rejected on these grounds, potentially opening avenues for review and appeal.

Practitioners must now be vigilant in ensuring that the Department of Home Affairs implements this judgment effectively, adjusting its policies and procedures to align with the Court's directive. This includes monitoring the training of immigration officials and the functioning of Refugee Reception Offices to prevent arbitrary decision-making. The ruling also serves as a potent reminder of South Africa's constitutional commitment to international human rights obligations, particularly the principle of *non-refoulement*. Going forward, the legal community must remain attentive to any legislative or regulatory amendments proposed by the DHA in response to this judgment, ensuring that the spirit and letter of the Constitutional Court's decision are fully upheld.