High Court affirms rights of refugees and children in landmark asylum judgment

The High Court has handed down a significant judgment in Scalabrini Centre and others v Minister of Home Affairs and others (Case No. 8486/2024), in which a full bench unanimously declared as unconstitutional and invalid key provisions of the Refugees Act and Refugees Regulations. The matter will now proceed to the Constitutional Court for confirmation.

Norton Rose Fulbright South Africa acted on a pro bono basis for the Helen Suzman Foundation, which was admitted as amicus curiae in the matter. Our team made focused submissions on the impact of the impugned provisions on children — particularly the failure to treat them as rights-bearers in their own capacity and to uphold the principle of the best interests of the child.

The Court held that the impugned provisions violated the principle of non-refoulement and improperly tied the fate of child asylum seekers to the conduct of their parents. In writing for the full bench, Cloete J stated that the provisions “regard children as appendages, whose fate is tied to the conduct of their parents,” and that they effectively barred children from having their own asylum claims heard.

The declaration of invalidity is suspended pending confirmation by the Constitutional Court.

The Norton Rose Fulbright South Africa team represented the Helen Suzman Foundation on a pro bono basis and was led by Advocate Irene De Vos. The matter forms part of the firm’s Social Impact Practice, which seeks to advance constitutional rights and access to justice for marginalised communities.