XENOBAROMETER: What the Constitutional Court judgment on asylum actually said
Despite the incredible ire the judgment has drawn from the anti-immigrant movement, it actually builds on several previous cases and achieves little that is new or controversial in South African immigration law.
The Constitutional Court ruled on asylum matters in South Africa in a decision confirmed on July 7, 2026. The judgment built upon previous legal precedents, reaffirming key principles of refugee law. The case originated when amendments to the Refugees Act in 2020 barred individuals who entered South Africa unlawfully from accessing the asylum system.
These amendments required immigration officials to conduct "good cause" interviews with undocumented people to determine their reasons for entering the country and their compliance with reporting requirements, despite the officials lacking proper training and necessary resources. This process essentially halted asylum processing at Reception Offices.
In April 2025, the Western Cape High Court struck down these provisions, and the Constitutional Court upheld this ruling in July 2026. The court reaffirmed the non-refoulement principle, which prohibits returning individuals to places where they face persecution or harm, and confirmed that asylum seekers cannot be deported until they have completed the application process and exhausted all appeals.
The decision aimed to ensure that asylum seekers have access to the application procedures regardless of how or when they entered South Africa. Despite the protests, the judgment essentially reinstated the ability of asylum seekers to access the system, although the implementation was delayed due to the Department of Home Affairs' initial inaction.
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