A Landmark Year for Refugee Law: What the Constitutional Court’s Latest Judgment Means for Asylum Seekers

The Constitutional Court Draws a Constitutional Line

The Court confirmed the invalidity of sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act. These provisions could effectively prevent certain asylum seekers from obtaining a substantive determination of their claims because of matters such as irregular immigration status, the absence of an asylum transit visa or failures relating to the timing and manner in which they entered the asylum process.

The difficulty, according to the Court, was not simply that immigration procedures existed. Rather, the impugned legislative scheme could place an asylum seeker outside the protection system before the State had determined whether returning that person could expose them to persecution or other serious harm.

That consequence implicated one of the foundational principles of refugee law: non-refoulement.

Non-Refoulement Comes First

Section 2 of the Refugees Act protects against the return of persons to countries where they may face persecution or threats to their safety or freedom. The Constitutional Court reaffirmed that this protection extends to asylum seekers while their claims have not been finally rejected following a proper determination on the merits.

This is particularly significant because refugee status does not arise merely from the issuing of a document. A person may, in substance, already satisfy the requirements for refugee protection before the State formally recognises that status.

The judgment therefore reinforces an important principle: the merits of the protection claim cannot simply disappear behind an immigration technicality.

What Does This Mean for Asylum Seekers?

The judgment strengthens access to South Africa’s asylum system for people whose claims might otherwise have been excluded because of procedural irregularities. An asylum seeker’s unlawful entry, delay in approaching the authorities or immigration status may remain relevant within the broader legal process, but such procedural issues cannot constitutionally operate as an automatic gateway preventing the underlying protection claim from being heard.

The Court was particularly critical of a system that could expose an individual to removal without first determining the danger that person might face in their country of origin. It also recognised the serious consequences such a system could have for children accompanying asylum-seeking parents.

Importantly, the judgment should not be understood as abolishing immigration controls or giving asylum seekers a general licence to disregard lawful procedures. Its significance is narrower but constitutionally profound: administrative non-compliance cannot be permitted to defeat protection against refoulement before the substance of an asylum claim has been properly considered.

2026 Has Also Brought Limits

The year has not produced only decisions expanding access to asylum protection. In Director-General, Department of Home Affairs and Others v Irankunda and Another [2026] ZACC 18, delivered on 12 May 2026, the Constitutional Court held that the Refugees Act does not provide failed asylum seekers with a right to lodge successive asylum applications after their original applications have been finally determined.

Read together, Irankunda and Scalabrini reveal an important direction in South African refugee jurisprudence: the asylum system must remain constitutionally accessible to genuine protection claims, but it is not intended to provide an endless cycle of applications once a claim has been lawfully and finally determined.

Procedure Must Serve Justice

The Scalabrini judgment is therefore about more than the invalidation of several statutory provisions. It reinforces the constitutional relationship between administrative procedure, human dignity and protection from persecution.

For asylum seekers, the message is significant: entering South Africa irregularly or failing to comply perfectly with immigration procedures does not, by itself, extinguish the right to have a genuine claim for international protection properly considered.

For the State, the judgment establishes an equally important principle: South Africa remains entitled to administer and protect the integrity of its borders and asylum system, but it must do so consistently with the Constitution, the Refugees Act and the country's international obligations. The Department of Home Affairs has acknowledged the judgment and stated that it is considering its implications for the immigration and refugee system.

The Ndou Attorneys Perspective

For legal practitioners and asylum seekers alike, 2026 represents an important development in the continuing evolution of South African refugee law. The Constitutional Court has again demonstrated that the rule of law is not merely about enforcing procedure—it is also about ensuring that procedure does not become an obstacle to constitutional protection.

At Ndou Attorneys Inc., we continue to monitor developments in immigration and refugee jurisprudence and assist clients in navigating asylum applications, refugee matters, administrative reviews and litigation arising from decisions of the Department of Home Affairs.

When protection is at stake, procedure matters—but justice must remain at the centre of the process.