Since the Constitutional Court declared parts of the Refugees Act unconstitutional, social media has filled up with claims that South Africa has opened its borders, granted amnesty or handed out automatic refugee status. None of this is true. In a recent interview on Newzroom Afrika, immigration lawyer Craig Smith set the record straight on what the Constitutional Court asylum ruling actually says, why Refugee Reception Offices are struggling, and what needs to happen next.
Watch the full interview: Craig Smith’s Newzroom Afrika interview, alongside the chair of Parliament’s Portfolio Committee on Home Affairs, is available on YouTube: Watch on YouTube
What the Constitutional Court decided
On 7 July 2026, the Constitutional Court handed down judgment in Scalabrini v Minister of Home Affairs. The case started in the Western Cape High Court years ago and was brought in two parts, the second dealing with the constitutionality of the Refugees Act.
The Court confirmed that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 are unconstitutional and invalid. In simple terms:
- Procedural mistakes can no longer block an asylum claim. People who entered irregularly, did not obtain an asylum transit visa, or did not report to a Refugee Reception Office within five days cannot be shut out of the system for that reason alone.
- Every claim must be assessed on its merits. Officials may not deport an asylum seeker before the person has properly accessed the asylum process.
- Children are protected in their own right. Children of asylum seekers may not simply be deported with their parents without any assessment of their own claim.
What the ruling does NOT do
This is where most of the misinformation sits. As Craig Smith put it in the interview, the Court simply said you cannot obstruct asylum seekers, but this is not a free pass.
- It does not grant refugee status to anyone.
- It does not create an amnesty or legalise people who are in the country unlawfully.
- It does not change who qualifies as a refugee.
Genuine asylum seekers can apply and will be given the opportunity to present their case. Economic migrants can also apply, but they will in all likelihood not qualify. The assessment process stays exactly as it was. According to Craig, this is how refugee systems work in every country that has signed the international refugee conventions.
Why the Refugee Reception Offices are overwhelmed
After the judgment, the Department of Home Affairs issued an internal operational directive in September. It was later withdrawn after it caused confusion, long queues and public tension, and the department was sent back to plan its implementation properly.
Craig, who has represented clients at Refugee Reception Offices in Cape Town and Pretoria, does not accept that the impact could not have been foreseen:
- Queues starting at 4 am have been a reality at these offices since the early 2000s.
- The influx was predictable once the Constitutional Court confirmed the invalidity of the provisions.
- In his view, the problem is not capacity but productivity and management.
The department, he argues, now finds itself unable to comply with a constitutional order because it failed to plan for it.
This is an implementation problem, not a legislation problem
During the interview, the chair of Parliament’s Portfolio Committee on Home Affairs pointed to the planned migration white paper and draft legislation as part of the response. Craig disagreed with that approach:
- Our laws are already progressive and clear. They are in line with refugee and migration regimes around the world.
- New bills will not change the ruling. Decisions of the Constitutional Court are supreme, and white papers on citizenship, immigration and refugees have no bearing on this judgment.
- Oversight needs teeth. The Portfolio Committee should urgently call the leadership of Home Affairs and the Refugee Reception Offices to Parliament to explain why the law is not being implemented.
- Violence must be prosecuted. Intimidation and violence against asylum seekers are criminal offences, and the police must act. Protecting asylum seekers is exactly what the Constitutional Court required.
What this means for you
If you are an asylum seeker, or you support someone who is:
- You may apply even if your status is irregular. A missing transit visa or a late report to a Refugee Reception Office should no longer stop your application from being accepted.
- Your claim must be heard before any deportation. If an official refuses to accept your application on procedural grounds, get legal advice immediately.
- The outcome still depends on your merits. You need a genuine fear of persecution or serious harm. A well-prepared claim with proper documentation makes a real difference.
- Asylum is not a fix for other immigration problems. If you overstayed a visa or need a work or spousal visa, other legal routes are usually the right path.
Frequently asked questions
Does the Constitutional Court asylum ruling give everyone refugee status? No. It only guarantees access to the asylum process. Each claim is still assessed individually.
Can I apply for asylum without an asylum transit visa? Yes. Not having a transit visa can no longer, on its own, exclude you from applying.
Can I be deported while my asylum claim is pending? The Court confirmed that asylum seekers may not be deported before they have properly accessed the asylum system and had their claim assessed.
I am an economic migrant. Should I apply for asylum? You may apply, but you are unlikely to qualify. Speak to an immigration lawyer first about the visa route that actually fits your situation.
Get advice from an experienced immigration lawyer
Craig Smith & Associates has represented asylum seekers, refugees and migrants across South Africa for many years. If you need help with an asylum application, an appeal or another immigration matter, contact our team for a consultation.
This article is general information and not legal advice.