XENOBAROMETER: What the Constitutional Court judgment on asylum actually said

Last week, March and March’s portrayal of a Constitutional Court judgment as a radical change to immigration law helped fuel days of violent anti-immigrant protests in Durban, Soweto and outside the court itself.

Online, the judgment was misrepresented as granting immigrants citizenship, jobs and voting rights.

But little has been written about what the judgment actually ordered or the legal timeline leading up to it.

The ruling built on established legal principles, but also struck down provisions of the Refugees Act that created barriers to the asylum process. It reaffirmed that people cannot be denied access to asylum application procedures simply because of how or when they entered South Africa.

Origins of the case 

In 2020, amendments to the Refugees Act effectively barred anyone who enters the country unlawfully from accessing the asylum system. 

Those amendments required immigration officials to conduct “good cause” interviews with undocumented people to establish whether they had good reason for entering South Africa illegally and failing to report to a Refugee Reception Office (RRO) within five days, according to Liesel Fourie, an attorney at the Nelson Mandela University Refugee Rights Centre in Gqeberha.

“In practice (those interviews) never happened,” said Fourie.

“(Immigration officials) felt they didn’t have the necessary training on it and weren’t provided with the necessary paperwork. They were also not allowed to actually make a decision themselves, and instead had to send their interview notes to the provincial or regional head of department, who had to make a decision.”

The inefficiency of this process, coupled with officials’ reluctance to even attempt to implement it, effectively brought asylum processing at South Africa’s RROs to a standstill. Fourie said that her office “never received a single good cause decision back in all the years since the amendments were passed”.

Tens of thousands of asylum seekers were stuck with no meaningful way of applying for refugee status. 

In April 2025, the Scalabrini Centre of Cape Town, which works to protect immigrant rights in South Africa, approached the Western Cape High Court to challenge the amendments.

On 15 May 2025, the high court found in its favour, striking down those provisions. 

It was this ruling that was finally confirmed by the Constitutional Court on 7 July 2026. 

For weeks, the Department of Home Affairs (DHA) “sat on that judgment”, said a senior staffer at Scalabrini. (Editor’s note: The staffer was interviewed on record on 5 October. Scalabrini’s board subsequently took the decision that no staff should be quoted in the news media as a safety precaution – owing to the anti-immigration movement’s tendency to dox and threaten activists. In respect of the Scalabrini board’s request, an editorial decision was taken to anonymise the staffer.)

In a letter to Home Affairs Minister Leon Schreiber on 4 September, Scalabrini and Lawyers for Human Rights called on the department to immediately reopen refugee reception offices to new applicants and stop applying the unconstitutional “good cause” requirement. The minister did not reply.

Then, on 28 September, the DHA issued a directive ordering all RROs to start processing new asylum claims with immediate effect. The suddenness of the directive caught those offices off guard and many RROs were soon inundated with hundreds of queuing migrants.

“The RROs were given no support to deal with the inevitable sudden wave of applicants, and it comes as no surprise that chaotic scenes ensued,” the Scalabrini staffer observed.

After violent anti-immigrant protests, on 9 October, the DHA revoked its own directive. It issued a statement that it would find the most appropriate way to comply with the Constitutional Court’s order.

“We are effectively back to where we were, with tens of thousands of asylum seekers not able to access the system. The difference now is that the country’s highest court has said they must have access, and unlike the DHAs directives, that order cannot be revoked,” said the Scalabrini staffer. 

Judgment was not groundbreaking

Despite the incredible ire this Constitutional Court judgment drew from the anti-immigrant movement, it actually builds on several cases that came before and achieves little that is new or controversial in South African immigration law. 

In a 2018 case – Ruta v the Minister of Home Affairs – the Constitutional Court had already affirmed that anyone wishing to apply for asylum must be allowed to do so regardless of how they entered the country, or how long it took them to apply.

Here, the court affirmed the principle of non-refoulement, enshrined in the Refugees Act, which prohibits returning people to places where they face persecution, torture or other serious harm.

Fourie said the principle protects even prospective asylum seekers: they cannot be deported until they have completed the application process and exhausted all appeals.

In December 2021, Abore v the Minister of Home Affairs and Another confirmed this part of the Ruta judgment. 

In June 2023, Ashebo v Minister of Home Affairs and Others provided further confirmation that an illegal foreigner who has expressed an intention to apply for asylum cannot be deported until they are given a fair opportunity to process that claim. 

“In this year’s Scalabrini judgment, the ConCourt confirms what was said in the Ruta judgment, the Abore judgment and the Ashebo judgment. The anti-migrants have been jumping up and down saying the Scalabrini judgment is this unheralded thing, but in fact the foundations were laid long ago,” Fourie said. 

What about people already stuck in detention?  

In August, the South African Police Service (SAPS) reported to Parliament that it had arrested, detained and, in some cases, deported thousands of “illegal” immigrants. This continues.

The DHA’s since-revoked directive to RROs to reopen on 28 September still did not cover asylum seekers who are currently detained or in the process of being deported. 

According to the Scalabrini staffer, this is because two Gauteng High Court judges took conflicting approaches to the Constitutional Court’s July decision.

“In Mnamo and others v Home Affairs, which was heard in August, Judge Mandlenkosi Motha ordered that the applicants [a group of undocumented people detained in the Lindela Repatriation Centre] should remain in detention, and that immigration and refugee officials should instead go to Lindela to process their asylum claims,” said the Scalabrini staffer.

About the other case he said:

“In Ered v Minister of Home Affairs and Another, which was heard in September, Judge Stuart Wilson strongly disagreed with Motha’s reasoning, and ordered that the applicant [a Lindela detainee] in his case be released with immediate effect.”

To resolve these conflicting approaches, Gauteng Judge President Aubrey Ledwaba referred the differing interpretations to a full-bench court for legal certainty. The session will take place on 29 October.

Fourie said the earlier Constitutional Court judgments offer competing guidance on detention. The 2018 Ruta judgment held that detention and deportation procedures must stop when someone expresses an intention to seek asylum.

“The 2021 Abore judgment said something different. It said that the provisions in the Ruta judgment that deal with the right to be released immediately fall away, because the regulation that previously provided for this was not included in the new regulations that came into effect in January 2020,” Fourie said. 

The 2023 Ashebo judgment also moved away from the Ruta judgment. It said that people in detention who wish to apply for asylum should be given an opportunity to be interviewed by an immigration officer, to ascertain whether they have good cause for being in the country unlawfully. It also put a duty on the state to assist people to apply for asylum while in custody.

“It should be said that this is completely impractical, because refugee asylum applications can only be made in person at an RRO – the officers aren’t mobile. This means immigration must load everyone into a van and take them to an RRO, where they may or may not be assisted, which is problematic,” she said.

The Scalabrini staffer believes that, following the Scalabrini judgment, which did away with the good cause requirement in the Refugees Act, the procedure should automatically revert to what was outlined in the Ruta judgment.

“In other words, people should be automatically released so that they can go and apply for asylum,” he said. 

Scalabrini will join the 29 October full-bench hearing as a friend of the court. 

“It is highly political,” the Scalabrini staffer conceded. DM 

XenoBarometer tracks the anti-immigrant movement and its impact. We aim to surface underreported stories, paying close attention to potential rights abuses, emerging patterns in anti-immigrant mobilisation and failures in the government’s response. It is produced by the Southern Africa Accountability Journalism Project (SA | AJP), an initiative of the Henry Nxumalo Foundation working with Viewfinder and with the financial assistance of the European Union. It can under no circumstances be regarded as reflecting the position of the EU.