Constitutional Court: Scalabrini Centre Asylum Judgment Invalidates DHA Provisions

• The Constitutional Court issued a binding judgment on July 7, 2026, in the case involving the Scalabrini Centre of Cape Town.
• The ruling declared specific sections of the Refugees Act unconstitutional, particularly those concerning transit visas and "good cause" interviews for asylum seekers.
• The Department of Home Affairs is constitutionally mandated to implement the judgment, and while it issued an operational directive, this directive was temporarily withdrawn on October 9, 2026, due to operational challenges and public safety concerns.
• The DHA condemned disinformation campaigns falsely asserting that the judgment grants citizenship or was initiated by the Minister or political parties.
• Lawyers for Human Rights represented the Scalabrini Centre in its successful challenge against the Minister of Home Affairs.

The Constitutional Court's confirmation of the High Court's finding underscores the judiciary's commitment to upholding these rights and principles within South Africa's legal framework.

The Constitutional Court delivered a significant ruling on July 7, 2026, in a case involving the Scalabrini Centre of Cape Town and the Minister of Home Affairs. This judgment addressed the processing of asylum applications in South Africa, specifically declaring certain provisions of the Refugees Act to be unconstitutional and therefore invalid. The non-profit Scalabrini Centre, which provides assistance to migrants, refugees, and local South Africans, initiated the legal challenge, represented by Lawyers for Human Rights.

At the heart of the matter were sections of the Refugees Act that permitted immigration officials to deport an asylum seeker if they lacked a transit visa. Such a visa is typically issued at a port of entry, enabling an individual to travel to a designated refugee reception centre to formally apply for asylum. The court's decision affirmed an earlier declaration by the Western Cape High Court regarding the invalidity of these provisions, marking a pivotal moment for asylum seekers' rights in the country.

The legal challenge brought by the Scalabrini Centre specifically targeted practices related to the requirement of "good cause" interviews for asylum applications. Under the previously enforced system, individuals who did not possess the necessary documentation were compelled to demonstrate a valid reason, or "good cause," to immigration officers for their lack of a required visa before their asylum application could proceed. These interviews were crucial in determining whether an undocumented person could even initiate the asylum process.

The applicants contended before the Western Cape High Court that these provisions of the Refugees Act unfairly prevented individuals with irregular immigration status from seeking asylum. They argued that such restrictions violated fundamental constitutional rights and contravened international principles of non-refoulement, which prohibit returning individuals to countries where they face persecution. The Constitutional Court's confirmation of the High Court's finding underscores the judiciary's commitment to upholding these rights and principles within South Africa's legal framework.

Following the Constitutional Court's binding judgment, the Department of Home Affairs (DHA) has publicly affirmed its constitutional obligation to implement the ruling. The department announced that it had issued an operational directive on September 28, 2026, to ensure compliance with decisions from the nation's highest court. However, this directive was temporarily withdrawn on October 9, 2026, due to unforeseen operational challenges and public safety concerns, though the Constitutional Court ruling itself remains binding. The DHA vigorously opposed the judgment during the litigation process.

The DHA also took the opportunity to condemn what it described as a large-scale disinformation campaign surrounding the judgment. The department categorically denied claims that the decision to suspend "good cause" interviews originated from the Minister, the department itself, or any political parties. Furthermore, the DHA refuted false assertions that the Constitutional Court's ruling grants asylum seekers citizenship or provides for the blanket legalisation of foreign nationals. Emphasizing its commitment to the rule of law, the department stated it would refer the matter to the Independent Electoral Commission for action under the recently published Code of Conduct on Countering Disinformation, which sets guidelines for political entities and their affiliates concerning election-related activities.

Lawyers advising asylum seekers and migrants in South Africa must be aware of the Constitutional Court's binding judgment invalidating certain provisions of the Refugees Act, particularly those related to transit visas and 'good cause' interviews. This ruling impacts the legal basis for processing asylum applications, and practitioners should monitor the Department of Home Affairs' operational directives to ensure compliance and advise clients on their rights under the revised framework, potentially challenging past decisions based on the now-unconstitutional provisions.

Source: Original reporting via government statement and court records