Victory for asylum seekers: High Court declares parts of Refugees Act unconstitutional

The Citizen

16-05-2025

The organisation argued that deporting individuals without properly considering their asylum applications violated constitutional principles.
Makeshift homes outside the UNHCR offices in Pretoria, 26 May 2022. Picture: Jacques Nelles
The Western Cape High Court has ruled that several provisions of the Refugees Act are unconstitutional and invalid, marking a significant victory for asylum seekers in South Africa.
This decision concludes a legal battle that lasted more than two years and offers relief to foreign nationals seeking refuge in the country.
Western Cape High Court ruling favours asylum seekers
In 2023, the non-profit organisation, Scalabrini Centre, successfully received an interdict stopping the Department of Home Affairs from deporting foreign nationals who had indicated their intention to apply for asylum under the Refugees Act 130 of 1998.
The organisation argued that deporting individuals without properly considering their asylum applications violated constitutional principles.
The High Court's recent 42-page judgment specifically addressed multiple contested sections of the Refugees Act.
These provisions had prevented asylum seekers from qualifying for refugee status if they had entered South Africa unlawfully, had fraudulent South African identification documents, or failed to report to a refugee reception office within five days of entering the country without compelling reasons.
The court found that 'simply refusing to entertain an application due to the fact that persons had entered the country unlawfully was contrary to the principle of non-refoulement'.
This principle prohibits countries from deporting people who might face persecution or irreparable harm in their countries of origin.
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Constitutional court confirmation pending
The declaration of constitutional invalidity has been referred to the Constitutional Court for possible confirmation, as the statute's invalidity cannot take effect without approval from South Africa's apex court.
The High Court declared several specific sections of the Refugees Act unconstitutional, including sections 4(1)(f), 4(1)(h), 4(1)(i), and 21(1B).
Additionally, regulations 8(1)(c)(i), 8(2), 8(3), and 8(4) of the Refugee Regulations were also deemed inconsistent with South Africa's constitution.
Impact on detention practices
Several international organisations with expertise in refugee and migrant rights participated in the case.
They expressed two primary interests: the application of the principle of non-refoulement and the impact the disputed provisions would have on migrant detention.
The court noted that these organisations had demonstrated that implementation of the questioned provisions had 'radically increased the detention of migrants in South Africa.'
The organisations argued that detention patterns would likely be reduced if the provisions were declared unconstitutional.
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Background on refugee protections
In reaching its decision, the High Court referred to established principles from previous Constitutional Court cases, including Ashebo, Ruta, and Abore.
These cases established that 'until an applicant's refugee status has been finally determined, the principle of non-refoulement protects the applicant from deportation.'
The Constitutional Court had previously found that 'once an illegal foreigner has expressed their intention to apply for asylum, they must be afforded an opportunity to do so'.
Furthermore, 'a delay in expressing that intention is no bar to applying for refugee status.'
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Legal framework
Section 2 of the Refugees Act orders the principle of non-refoulement, stating that 'no person may be refused entry into the Republic, expelled, extradited or returned to any other country' if such actions would compel them to return to or remain in a country where they might face persecution or threats to their life, physical safety, or freedom.
The court ordered the respondents to pay 80% of the applicants' costs, including those incurred during the initial part of the application.
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