Five Days to Seek Asylum? What the Constitutional Court Said About Procedural Barriers

South Africa’s Constitutional Court has reaffirmed that access to refugee protection cannot be denied merely because an asylum seeker failed to comply with procedural immigration requirements.

In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others [2026] ZACC 30, the Court considered provisions of the Refugees Act that allowed asylum seekers to be excluded from the asylum system for entering South Africa irregularly, failing to report to a Refugee Reception Office within five days, lacking an asylum transit visa or committing certain immigration-related offences.

On 7 July 2026, the Court unanimously declared sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act unconstitutional and invalid.

Procedure Cannot Replace Protection

The Court held that procedural non-compliance cannot prevent an asylum claim from being considered on its merits. A person may be a refugee in substance before being formally recognised as one. Refusing to hear that person’s claim because of late reporting or irregular entry may expose them to deportation before the risk of persecution has been properly assessed.

This would undermine the principle of non-refoulement, which prohibits the return of a person to a country where they may face persecution, torture or other serious harm.

The judgment does not mean that immigration procedures are irrelevant. Rather, it establishes that procedural breaches cannot operate as an absolute bar to refugee protection. The State may address non-compliance through lawful and proportionate measures, but it cannot use administrative formalities to avoid determining whether an individual genuinely requires protection.

The Problem with the Five-Day Requirement

The statutory framework required asylum seekers to provide explanations such as “valid reasons”, “good cause” or “compelling reasons” for failing to comply with procedural requirements. However, these standards were not clearly defined.

The Court found that the system gave officials insufficient guidance and created a real risk of arbitrary and inconsistent decision-making. Vulnerable applicants could therefore be excluded from the asylum process on the basis of an unclear threshold assessment conducted before the substance of their claims was considered.

Section 21(1B) was also found to be vague and irrational because it required an immigration officer to determine whether an applicant had valid reasons for not possessing an asylum transit visa, without adequately explaining how the enquiry should be conducted or what consequences should follow.

Protecting the Rights of Children

The Court was particularly concerned about children whose asylum claims were linked to those of their parents. Under the invalid provisions, a child could be excluded because of a parent’s procedural failure, without an individual assessment of the child’s circumstances.

Such an approach was inconsistent with section 28 of the Constitution, which requires that a child’s best interests be treated as paramount in every matter concerning that child.

What the Judgment Means

The decision confirms that asylum seekers must ordinarily be given access to a fair, individual and merits-based determination of their protection claims. Late reporting, irregular entry or the absence of an asylum transit visa cannot, on their own, justify excluding a person from the asylum system.

The five-day period should therefore not be understood as a deadline after which the right to seek asylum automatically disappears. Every case must be assessed substantively, with proper regard to constitutional rights, international refugee law and the prohibition against refoulement.

The judgment sends a clear message: administrative procedure may regulate access to the asylum system, but it cannot become a barrier that places human life, dignity and safety at risk.

Anyone experiencing difficulties accessing the asylum system should obtain legal advice based on their individual circumstances.