The Constitutional Court has struck down parts of South Africa’s Refugees Act, ruling that asylum seekers cannot be denied the opportunity to apply for refugee status simply because they failed to meet procedural requirements.
The landmark judgment has been welcomed by migration experts, who say it reinforces the rule of law and protects vulnerable people from being unfairly excluded from the asylum system.
In a unanimous judgment delivered by Justice Steven Majiedt, the apex court found that provisions allowing asylum applications to be rejected because of procedural non-compliance are unconstitutional.
The court ruled that every asylum application must be assessed on its merits, rather than dismissed because an applicant missed a deadline or failed to comply with administrative requirements.
The court also declared unconstitutional provisions that automatically tied a child’s refugee status to that of their parents, meaning children could previously be denied protection because of their parents’ actions or omissions.
The case was brought by the Scalabrini Centre of Cape Town, with support from several human rights organisations, which argued that the law lacked clear guidelines on what constituted a “valid reason” or “good cause” for failing to comply with procedural requirements.
They said this resulted in inconsistent decisions and violated international obligations not to return people to countries where they may face persecution.
Speaking to The Honest Truth on Smile FM, social anthropologist Dr Rebecca Walker from the African Centre for Migration and Society at the University of the Witwatersrand said the Constitutional Court had effectively confirmed an earlier Western Cape High Court ruling that the Department of Home Affairs cannot reject asylum seekers “on a technicality”.
Walker said the judgment makes it clear that every asylum claim must be considered individually, arguing that many asylum seekers have struggled to comply with the legal process because administrative failures have prevented them from accessing it.
“The whole premise of this case is asking the government to be lawful in what it does,” she said, adding that many people had been unable to enter the asylum system because “the door has been shut to them before they’ve even tried to open it.”
She also welcomed the court’s criticism of unsupported claims linking certain nationalities to criminal activity, saying the judgment reinforces that government decisions must be based on evidence rather than anecdote.
Walker said the Department of Home Affairs had made vague allegations that were not supported by evidence, and the Constitutional Court made it clear such claims could not justify limiting asylum seekers’ rights.
While acknowledging widespread public concern over unemployment, crime and pressure on public services, Walker said the judgment should not be interpreted as lowering the threshold for refugee status.
“It doesn’t make it easier to get refugee status,” she said. “The bar of who qualifies hasn’t moved. What’s changed is that people now actually get a hearing before they get refused.”
Walker said the ruling could also have wider implications because documentation affects access to banking, employment and, in some cases, healthcare. She argued that allowing asylum seekers to regularise their status benefits both migrants and the state by enabling people to participate lawfully in society.
The Constitutional Court also ordered the Department of Home Affairs to pay legal costs, criticising its litigation as “exceptionally poor” and finding that it relied on sweeping and unsupported allegations about Afghan and Bangladeshi nationals’ involvement in human trafficking.
