The Constitutional Court has unanimously ruled that asylum seekers cannot be deported before their claims are properly assessed, declaring key sections of the Refugees Act unconstitutional.

The court this week found that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act violated the international principle of non-refoulement, which prohibits governments from sending people back to countries where they face persecution or danger.

The ruling confirms a Western Cape High Court decision from May last year and has immediate effect.

Justice Steven Majiedt, who penned the judgement, said the provisions created “procedural filters” that allowed immigration officials to exclude asylum seekers from the refugee system based on administrative non-compliance, without ever considering whether their asylum claims had merit.

“All asylum seekers are protected by the principle of non-refoulement and the protection applies as long as the claim to refugee status has not been finally rejected after a proper procedure on the merits,” Majiedt said.

The case was brought by the Scalabrini Centre of Cape Town, which challenged amendments to the Refugees Act that came into effect in January 2020.

Scalabrini argued the amendments gave Home Affairs officials “sole discretion” to determine whether asylum seekers without transit visas should be deported or allowed to proceed with their applications. Transit visas are issued at ports of entry to allow people to travel to refugee reception centres and apply for asylum.

Before the amendments, anyone who presented at a refugee reception office could enter the asylum system, regardless of whether they had initially reported themselves at a port of entry or how long they had been in South Africa illegally.

The amendments fundamentally changed this by requiring asylum seekers to provide “good cause”, “valid reasons” or “compelling reasons” at various stages of the process. However, these terms were nowhere defined, Majiedt said, “creating a real risk of arbitrary and inconsistent decision making”.

The Minister and Director-General of Home Affairs opposed the application, arguing the provisions created a “safety valve” rather than an automatic bar to asylum.

Majiedt rejected this argument as “ill-conceived”, saying there was no justifiable basis for preventing asylum seekers from applying for refugee status based on procedural missteps.

“It subjects vulnerable asylum seekers to yet another bureaucratic step. This is an arbitrary exercise of state power,” he said.

The court also found the provisions particularly harmful to children, whose asylum claims are often tied to those of their parents. Children could be excluded from the system because of their parents’ procedural non-compliance, without any individual assessment of the child’s circumstances or best interests.

The court expressed serious concern about how the government had conducted the case, saying the respondents had “litigated extremely poorly” and displayed “gross laxity and disturbing ineptitude”.

Majiedt took particular aim at unsupported claims made by government lawyers about Afghan and Bangladeshi nationals’ involvement in human trafficking in South Africa.

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“Advancing such claims, particularly in the absence of evidentiary foundation, not only undermined the integrity of the State’s case but also introduced rhetoric that risks being perceived as xenophobic and racially charged,” he said.

“Submissions of this nature, when advanced before this court, carry the potential to shape broader societal narratives about refugees and may adversely affect the protection of their rights.”

The court ordered the government to pay the costs of the application, including the costs of two counsel.

Several organisations were admitted as friends of the court, including the Helen Suzman Foundation, Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the United Nations High Commissioner for Refugees.

The ruling prohibits the Department of Home Affairs from deporting asylum seekers before they have been given the opportunity to access the asylum system and have their claims processed on their merits.