Parts of the Refugees Act and its regulations that allowed for Home Affairs to "filter" asylum seekers who do not have valid transit visas, have been declared unconstitutional.
• The Western Cape High Court agreed with the Scalabrini Centre that this put asylum seekers at risk of being sent back to their home countries, where they could face persecution.
• The matter will now go to the Constitutional Court for confirmation.
The Western Cape High Court has struck down sections of the Refugees Act which allowed for the deportation of asylum seekers even before they could access the asylum system.
But the court declined to issue a temporary interdict preventing the deportation of affected people, saying that until the Constitutional Court considers the matter, asylum seekers will have to individually approach courts if they believe they have been unlawfully shut out of the system.
The matter was taken to court by the Scalabrini Centre in Cape Town. It argued that amendments to the act and regulations, which took effect from January 2020, put refugees at risk of persecution because they could be returned to their countries of origin without having their asylum applications even considered.
The amendments allowed for asylum seekers who have entered the country unlawfully and do not have a valid asylum transit visa, to be denied full access to the asylum system after an initial "filtering" interview with an immigration officer. Scalabrini wanted the court to declare this unconstitutional.
These officers had the "sole discretion" to determine this unless they were presented with "compelling reasons" to decide otherwise, Scalaibrini argued.
This was the second part of Scalabrini's court case. In the first part, in August 2024, Scalabrini secured an interim interdict stopping the deportation of asylum seekers. The second part, its main application to have the sections of the act declared unconstitutional, was heard in February in the Western Cape High
Court before Judges Judith Cloete, Lister Nuku and Acting Judge Shami Kholong.
During that hearing it emerged that since the granting of the interdict, the Department of Home Affairs had effectively shut off access to the asylum system for new applicants. But arrests of people who wanted to seek asylum but who did not have valid visas continued, filling up prisons with asylum seekers.
Writing for the court, Judge Judith Cloete said while in the initial interdict application, the applicant had relied on specific instances of how certain refugees had been treated, it was now relying on "an abstract constitutional challenge".
"As we understand it, the crux of the applicant's complaint is that if a foreign national is not in possession of a valid five-day asylum transit visa (whether due to illegal border crossing or it having lapsed), and that foreign national cannot persuade an immigration officer that he or she has valid reasons for this, then he or she will not get to the next stage at all.
"In other words, so the applicants say, given the overarching principle of non-refoulement, it should not be incumbent on such an individual to satisfy a bureaucratic official of the 'valid reasons' requirement in order to exercise the rights of an asylum seeker," Judge Cloete said.
Non-refoulement is a principle in international law that prohibits governments from sending or "refouling" people back to countries where they face persecution or danger.
The government respondents, including the Minister and Director-General of Home Affairs, argued against Scalabrini's interpretation. They claimed that rather than depriving foreigners unlawfully in the country of their rights, the provisions created a "safety valve" so that such people are not shut out as long as they can show valid and compelling reasons.
But Scalabrini argued that it was the process that was the problem and that requiring people to undergo the so-called "safety valve" exercise before they are able to formally access the asylum system, after which they could be arrested and deported, violated the principle of non-refoulement.
It was not a safety valve, but a "threshold", Scalabrini argued.
Judge Cloete said that according to the plain wording of the law, immigration officers are required to "ascertain whether valid reasons exist" as to why an applicant is not in possession of the transit visa.
Cloete said it is undeniable "that a determination of this nature which is unfavourable to an illegal foreigner may result, without more, in deportation. This defeats the very purpose of the non-refoulement principle enshrined in the Act. It also falls foul of international law. "
She said the regulation's guidance on "compelling reasons" for not having a valid visa included hospitalisation, institutionalisation or any other compelling reasons but did not include that the person concerned may be persecuted if sent back to their home country.
This was contrary to the multiple international treaties that South Africa had ratified since democracy.
The Helen Suzman Foundation (HSF), which had been admitted along with other human rights organisations as friends of the court, had correctly argued that the effect of the provisions was aggravated by the harm on children who would be deported with their parents, Cloete said.
"The first underlying principle is that children are individual right bearers and not mere appendages of their parents. The second is that, even if it can be justified that a parent ought to be barred from applying for asylum for procedural missteps -- which we have found cannot be countenanced -- children are not to be penalised for the missteps of their parents," Judge Cloete said.
Turning to the relief, Judge Cloete said in terms of the Constitution, a court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief, pending confirmation or otherwise by the Constitutional Court.
Scalabrini had asked for a temporary interdict.
But, Judge Cloete said, this would be too far-reaching and would effectively "have the consequence that we step into the shoes of the legislature for an indefinite period".
"This does not sit comfortably with us."
She noted that since the initial interdict was granted the "unintended consequence" was that the asylum system had been shut down.
"We have also taken into account that the constitutional challenge is an abstract one. There is nothing preventing any affected individual from approaching the court in his or her own right given our findings and the pending confirmation, or otherwise, of the Constitutional Court."
She said the respondents had highlighted a number of possible practical difficulties if another temporary interdict were granted.
"We deliberately adopted a cautious approach because, as indicated, the ramifications to hundreds of thousands of individuals in this country, as well as the respondents, are potentially both too risky and too great.
"We shall thus simply suspend our declaration of invalidity pending the outcome of the Constitutional Court proceedings".
The court struck down the relevant provisions as being unconstitutional, discharged the interim interdict granted in August 2024 and ordered the government respondents to pay 80% of Scalabrini's costs.
