The Constitutional Court has unanimously struck down key provisions of the Refugees Act, ruling that asylum seekers and their children cannot be turned away on procedural grounds alone. 

In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (2026), the Court confirmed the Western Cape High Court's declaration that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act are inconsistent with the Constitution. The related regulations, already struck down by the High Court and unchallenged on appeal, remain invalid. 

Under the old rules, asylum seekers who entered South Africa irregularly, or who did not report to a Refugee Reception Office within five days, had to show "good cause" or "valid reasons" before they were allowed to apply for asylum. Those who could not, faced deportation without anyone looking at whether their asylum claim had merit.  The Court found that this infringed the principle of non-refoulement, which is guaranteed by the Refugees Act and customary international law and states that a person cannot be sent back to a country where they are likely to face persecution.  

The Helen Suzman Foundation joined the case as amicus curiae and argued that the provisions harmed children of asylum seekers. The Court agreed, saying children were being punished for their parents' actions and deported without anyone considering what was best for them or looking at their own claims.

Justice Steven Majiedt, writing for the whole Court, found the rules made no sense, were too unclear, and broke the non-refoulement principle. The Court also criticised how the government side had handled the case and ordered the Minister of Home Affairs Leon Schreiber and the other respondents to pay the applicants' legal costs.

“This judgment closes a gap that allowed the state to deport asylum seekers and their children without ever assessing whether they had a genuine claim to protection. Procedural missteps, however minor, could not be allowed to override the right to seek asylum," said Deneys Head of Impact Investigations, Jason Whyte, who together with Chuma Bubu, Associate at Deneys, was represented pro bono by Advocate Irene De Vos.