Xenophobia’s high price — why ConCourt’s defence of refugees matters for us all

The Constitutional Court's recent ruling on refugees has been widely misinterpreted, fueling xenophobia and threatening the rule of law. Professor Balthazar, a leading legal expert, remains anonymous to protect his daily work. The judgment, which celebrates South Africa's 30th year of constitutional rights, should have been celebrated, yet it has instead caused unrest.

The court's judgment confirms that certain sections of the Refugees Act of 1998, and associated regulations, were inconsistent with the Constitution. The argument centered around the disqualification of foreign nationals seeking asylum due to non-compliance with procedural requirements. The high court initially deemed these provisions to be unjustifiable violations of non-refoulement, a principle in international law prohibiting forced expulsion or return.

The amendments to the Refugees Act and its Regulations changed the process for asylum seekers. A simple entry delay or irregularity now carries drastic consequences. An applicant must now undergo an interview with an immigration officer to provide "valid reasons" for not having an asylum transit visa. Additionally, they must show "good cause" for illegal entry or stay.

If the applicant cannot provide compelling reasons for crossing the border or reporting to an RRO within five days of entry, they cannot qualify for refugee status.

The court unanimously ruled that these new provisions are merely procedural filters and do not violate the principle of non-refoulement. However, critics argue that these changes have created unfettered discretion for immigration officers to determine the fate of applicants. The absurdity of the situation is that an asylum seeker, facing traumatic consequences, must navigate through multiple interviews and provide reasons for their circumstances.