LISTEN | EXPLAINER: What the ConCourt’s refugee ruling means for asylum seekers

This week, the Constitutional Court confirmed that parts of South Africa’s Refugees Act are unconstitutional, marking a significant development for asylum seekers whose applications were previously rejected on procedural grounds rather than on the merits of their claims.

The ruling stems from a challenge brought by the Scalabrini Centre of Cape Town and Lawyers for Human Rights (LHR), which argued that certain provisions of the Refugees Act created unfair barriers that prevented people seeking protection from having their cases properly considered.

According to Mpho Makhubela, communications officer at Lawyers for Human Rights, the court found that some provisions of the Refugees Act did not meet constitutional standards because they created procedural obstacles that undermined the right to seek asylum.

“The unconstitutional provisions create procedural barriers that prevent asylum seekers from having their claims determined on their merits, contrary to the constitution and the principle of non-refoulement,” Makhubela said.

Makhubela said the struggle is to hold the department of home affairs and the state to account with respect to the enforcement and adherence to policy, law and order.

“It is the vigilantes and anti-rights groups that are betraying the constitutional values and ethos of ubuntu, and the only way to address this is for communities to organise themselves to hold the state to account.

“This judgement demonstrates the power of collaboration and engagement of the judiciary when the voiceless among us have their dignity trampled on and their basic human rights denied.”

On Thursday, the department of home affairs said it had achieved the biggest reduction in South Africa’s refugee appeals backlog in years after a series of reforms at the Refugee Appeals Authority of South Africa (Raasa), reducing the active appeals caseload by more than 12%.

“Raasa’s active appeals caseload declined from 79,870 cases at the end of 2024 to 70,976 at the end of 2025, representing a reduction of 8,894 active appeals. From the ringfenced backlog of 133,582 appeals, a total of 19,064 cases were removed during the 2025/26 financial year, representing a 14.2% reduction.

“Cases were removed through appeal determinations, withdrawals, case finalisations and paper determinations where appellants failed to attend scheduled hearings. The refugee appeals backlog accumulated over more than two decades, with many unresolved cases dating back to 2008,” the department said.

Makhubela said the judgment highlights the need for asylum procedures that are transparent, lawful and subject to proper oversight.

He said the Constitutional Court recognised that immigration systems administered without clear legal standards, effective oversight and accessible review mechanisms could become vulnerable to corruption and extortion.

Lawyers for Human Rights say they will continue using strategic litigation, legal education, community organising and advocacy to help asylum seekers understand and enforce their constitutional rights.

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