- Constitutional Court confirms key Refugees Act provisions restricting asylum applications are invalid.
- Court finds provisions violate constitutional principle of non-refoulement and fundamental rights.
- Home Affairs ordered to pay applicants' legal costs.
The Constitutional Court has confirmed that several provisions of the Refugees Act are unconstitutional because they prevent asylum seekers from having their claims assessed on their merits solely due to procedural non-compliance.
In a unanimous judgment written by Justice Steven Arnold Majiedt, the Constitutional Court confirmed an order of the High Court in the Western Cape declaring Sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act inconsistent with the Constitution.
The matter was brought by the Scalabrini Centre of Cape Town and its trustees against Minister of Home Affairs Dr Leon Schreiber, Director-General Livhuwani Tommy Makhode, the Chief Director of Asylum Seeker Management, the Refugee Appeals Authority of South Africa, and the Standing Committee for Refugee Affairs.
Several organisations participated as friends of the court, including the Helen Suzman Foundation, Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition, and the United Nations High Commissioner for Refugees.
Challenge to asylum restrictions
The applicants argued that the impugned provisions effectively barred people from seeking asylum if they had failed to comply with certain immigration procedures, including entering South Africa through designated ports of entry or reporting to a Refugee Reception Office within prescribed time limits.
They contended that the legislation allowed asylum seekers to be excluded before officials ever considered whether they genuinely qualified for refugee protection.
The respondents argued that the provisions formed part of a lawful system balancing immigration control with refugee protection and maintained that the legislation merely created a process allowing officials to condone procedural non-compliance where appropriate.
Constitutional protection comes first
The Constitutional Court rejected those arguments. Justice Majiedt said, "The impugned sections prevent asylum seekers from accessing a merits-based assessment of their claims based on procedural non-compliance."
He said Section 4 of the Refugees Act "has the effect of disqualifying applicants from refugee status before their claims are substantively assessed, violating the principle of non-refoulement and the cluster of fundamental rights at the heart of non-refoulement protection, including the rights of children."
The court held that South Africa's constitutional and international obligations require authorities to consider the merits of an asylum application before a person can be returned to a country where they may face persecution or serious human rights violations.
Vague and irrational provisions
The Constitutional Court also found that Section 21(1B) of the Refugees Act failed constitutional scrutiny because it required immigration officials to determine whether "valid reasons" existed for an applicant not having an asylum transit visa, while not guide how that assessment should be conducted.
Justice Majiedt said, “The provision provides no criteria for that determination, no guidance to officials and no clear legal consequence flowing from the outcome of the interview."
The judgment found the legislative framework imposed different and confusing standards, including "valid reasons", "good cause" and "compelling reasons", without defining what those terms meant.
According to the court, this created uncertainty, allowed arbitrary decision-making and imposed an unjustifiable barrier to asylum seekers accessing protection.
Home Affairs criticised
The Constitutional Court also criticised the Department of Home Affairs for the way it handled the litigation. Justice Majiedt described the department's attempted appeal relating to the regulations as "a lamentable display of remarkable gross ineptitude and egregious laxity."
He also criticised unsupported allegations made during the argument about certain foreign nationals.
The judge said, "Advancing such claims, particularly in the absence of any evidentiary foundation, not only undermined the integrity of the state's case, but also introduced rhetoric that risks being perceived as xenophobic or racially charged."
Final order
The Constitutional Court confirmed the High Court's declaration that Sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act are unconstitutional and invalid.
The court ordered the respondents, jointly and severally, to pay the applicants' costs, including the costs of two counsel.
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