The Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights (LHR), approached the Western Cape High Court to challenge provisions of the Refugees Act and accompanying regulations that have systematically denied new asylum seekers access to the asylum system.

In a landmark judgment on 15 May 2025, the Western Cape High Court found that several sections of the Refugees Act and Refugee Regulations are inconsistent with the Constitution of South Africa and therefore invalid. These provisions have thus been unlawfully used to bar newcomer asylum seekers from applying for asylum, resulting in their arrest, detention, and deportation without an assessment of the merits of their asylum claims.

Someone who flees war, violence, torture, or persecution must be able to apply for and receive asylum. Preventing them from doing so violates their fundamental right not to be returned to violence and persecution. Instead of being afforded protection, new asylum applicants have been arrested, detained, and face deportation, in direct contravention of South Africa’s constitutional and international obligations.

In terms of section 172(2)(a) of the Constitution, when a High Court declares legislation unconstitutional, that declaration has no force unless it is confirmed by the Constitutional Court. Accordingly, the Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights, will approach the Constitutional Court on 12 February 2026 to seek confirmation of the High Court’s judgment.

Should the Constitutional Court confirm the findings of the High Court, the provisions that currently bar asylum seekers from accessing the asylum system will be set aside. This would restore access to asylum procedures and reaffirm South Africa’s obligation not to return individuals to environments where their life, liberty, or fundamental human rights would be at risk. South Africa cannot, must not, and is legally required not to do so.

This matter echoes earlier findings affirming that newcomer asylum seekers must be permitted to apply for asylum, regardless of their manner of entry or documentation status. The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa provides that: “No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened…” Similarly, Article 31(1) of the 1951 Convention Relating to the Status of Refugees prohibits the penalisation of refugees for irregular entry or presence if seeking asylum. The central question in any asylum claim must always remain whether an individual faces a real risk of persecution or serious harm if returned to their country of origin.

The Scalabrini Centre of Cape Town and Lawyers for Human Rights reiterate that denying access to the asylum system undermines the fundamental principle of non-refoulement and violates constitutional rights including human dignity, life, and security of the person.

We trust that the Constitutional Court will uphold these principles and provide legal certainty that protects the rights of asylum seekers in South Africa.