Rights Groups Disappointed by Constitutional Court Asylum Ruling

Human rights organisations and immigrant community leaders say the Constitutional Court ruling that bars rejected asylum seekers from reapplying, reflects a broader push to close South Africa’s borders.

• Human rights organisations and leaders of immigrant communities in South Africa have expressed disappointment with Tuesday’s Constitutional Court judgment.
• Kopanang Africa Against Xenophobia says the ruling, which bars rejected asylum seekers from reapplying, means people who fled countries where their lives were in danger may now be deported back to them.
• The Scalabrini Centre noted the court found only that the current legislation does not provide for repeat applications — without directing Parliament to remedy the gap.

Human rights organisations and leaders of immigrant communities in South Africa have expressed disappointment with Tuesday’s Constitutional Court judgment that overturned a Supreme Court of Appeal ruling, by finding that people whose asylum applications have been rejected cannot submit new applications.

Dale McKinley, of Kopanang Africa Against Xenophobia, said, “The main problem is that people who came as asylum seekers from countries where their lives were in danger may now be deported back to their countries because they’re not allowed repeat applications … that is unacceptable.”

“It means people can be deported back to places where they risk being killed or imprisoned for what they did before they left. That is the main disappointment with this ruling.”

McKinley said the general trend in South Africa is to make it harder to apply for refugee and asylum seeker status. He said the Department of Home Affairs wants everything to be resolved at the borders, where officials can refuse entry and reject people before they enter the country.

“The policy and institutional changes taking place at Home Affairs and government are anti-immigrant. They are closing what they see as loopholes, shifting from a relatively open migration system to a much more closed one. It is becoming harder for people to enter the country, regardless of their reasons,” he said.

McKinley advised rejected asylum seekers to explore other options, such as applying for scarce skills visas, or to appeal to international agencies such as the United Nations Human Rights Council. He also said they could seek refuge in other friendly countries.

James Chapman, of the Scalabrini Centre, said, “It is disappointing and does look like a muted response, with the court focusing on and looking at whether the legislation as it stands allows for and provides for subsequent asylum applications and what safeguards would be in place after final rejections.”

“The court found that the law does not currently provide for this, but the court did not go further to say that such provisions should be developed by the legislature.”

“The issue of accepting new asylum applicants is a separate issue. At present, new applications are not accepted unless the applicant produces an asylum transit visa issued at a port of entry.”

Chapman said they have challenged the transit visa requirement in the Constitutional Court. The case was heard on 12 February 2026.

“If the Constitutional Court does decide to restore access to the asylum system by removing Section 21(1)(b) and other exclusion clauses that bar applicants without a transit visa, the courts should also restore access to refugee centres for new applicants. We hope these applications will be processed properly and that protection will be provided in accordance with the law,” Chapman said.

He said it was not all bad news for asylum seekers, as they can still appeal to the Standing Committee on Refugees or the high court.

“If an asylum seeker is rejected, they have recourse to appeal that decision. They should also approach civil society organisations that can advise and assist them with an appeal or review,” Chapman explained.

Chris Mapingure, director of Refugees and Migrants Rights Support Services and Chairperson of the Zimbabwe Migrants Support Network, said, “We are saddened by this ruling.”

He also advised those whose applications are rejected to engage their legal representatives quickly and file a review application in the high court.

Ngqabutho Mabhena, of the African Diaspora Forum, said he respected the judgment but said applications were often rejected because of the language barrier.

“We have members who failed to express themselves due to language barriers during interviews for Section 22 asylum documents.

“A person may be rejected because what they told the official was unclear or unconvincing. If that person is a victim in their country of origin and is deported, they will face consequences. That is our main fear.

“When people arrive, apply, and are rejected, they still have a chance to appeal. We advise those rejected to do so. We note that this judgment concerned an individual case. Those who were rejected and can prove their case beyond reasonable doubt should appeal so they can be protected by the state,” said Mabhena.

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