South Africa Immigration Lawsuits: Asylum, Detention Review, School Access

South Africa immigration lawsuits in 2025 and 2026 have reshaped the rules on asylum, detention, and the conduct of anti-migrant groups. The Constitutional Court has barred failed asylum seekers from filing repeat applications, the Gauteng High Court has placed sweeping restraints on Operation Dudula, Parliament has codified judicial oversight of immigration detention, and a separate Constitutional Court case on asylum access barriers is awaiting judgment. Each of these decisions changes what applicants, detainees, and advocates can do next.

Repeat Asylum Applications Are Now Barred

On 12 May 2026, the Constitutional Court held in Director-General, Department of Home Affairs and Others v Irankunda and Another (CCT 214/24) that the Refugees Act does not allow a failed asylum seeker to submit a fresh application once their original claim has been finally determined through internal appeals and reviews.¹

The applicants were two Burundian nationals rejected in 2014 who tried again in 2015 after political unrest at home. Writing for the majority, Justice Kollapen distinguished a genuine first-time claim by someone who became a refugee after leaving home from a repeat filing by someone already rejected. Treating every subsequent application as a fresh one, the Court said, would require full interviews, reviews, and appeal rights each time, producing a “never-ending cycle” and “inevitable chaos.”¹ The proper remedy for a rejected applicant is judicial review of the original decision.²

Rogers J and Nicholls AJ dissented, warning that the Act could reasonably be read to allow further applications where conditions in a home country have materially changed, and that a blanket bar risks violating the principle of non-refoulement.³ For practical purposes, anyone whose asylum claim has run its course now has one route left: review the original decision in the High Court, not reapply.

A Pending Constitutional Court Case Could Reopen Asylum Access

A separate challenge, brought by the Scalabrini Centre of Cape Town and represented by Lawyers for Human Rights, targets the barriers that keep people from filing in the first place. In May 2025, the Western Cape High Court declared sections 4(1)(f), 4(1)(h), 4(1)(i), and 21(1B) of the Refugees Act and several associated regulations unconstitutional.⁴

The provisions required asylum seekers to justify procedural non-compliance, such as undocumented entry or late reporting, before any assessment of persecution on the merits. Scalabrini argued the rules had produced a 90% decline in new asylum applications, leaving Refugee Reception Offices “empty.”⁴ The High Court suspended its declaration pending confirmation by the Constitutional Court, which heard argument on 12 February 2026 with the UNHCR, Amnesty International, and the Helen Suzman Foundation participating as friends of the court. As of mid-2026, judgment is reserved.⁵ Until the Constitutional Court decides, the challenged provisions technically remain in force.⁶

Operation Dudula Restrained by the Gauteng High Court

On 4 November 2025, Judge Leicester Adams of the Gauteng Division handed down a wide-ranging judgment against Operation Dudula, which had conducted identity checks, evictions, and intimidation campaigns targeting people perceived to be foreign nationals.⁷ The case was filed in 2023 by Kopanang Africa Against Xenophobia, the South African Informal Traders Forum, the Inner City Federation, and Abahlali baseMjondolo, represented by the Socio-Economic Rights Institute. Operation Dudula filed no opposing papers, so the matter proceeded unopposed.⁸

The orders set hard limits on private enforcement of immigration law:

Only immigration officers and police may demand identity documents. Operation Dudula and its leaders Zandile Dabula and Dan Radebe are permanently barred from conducting such checks.⁷
The group is interdicted from intimidating, harassing, or assaulting people identified as foreign nationals, and from publishing hate speech based on nationality or ethnicity.⁹
Interference with foreign nationals’ access to healthcare facilities, schools, employment, and trading stalls is prohibited, as are unlawful evictions.⁷
Section 41 of the Immigration Act applies only in public places, requires reasonable suspicion before officers demand identification, and excludes children from interrogation or arrest except as a last resort.⁷
The state must implement the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, including an early warning system for xenophobic threats and published hate crime data.⁷

The court dismissed claims that the South African Police Service colluded with Operation Dudula, finding the evidence insufficient.⁷ On 6 November 2025, Operation Dabula announced the organization would seek leave to appeal.⁸

Detention Must Now Be Reviewed by a Court Within 48 Hours

The Immigration Amendment Act 11 of 2025, signed by President Ramaphosa on 11 May 2026, codifies rules that courts had been building piecemeal since the Constitutional Court’s 2017 ruling in Lawyers for Human Rights v Minister of Home Affairs.¹⁰¹¹

Under the Act, any foreign national detained for deportation must appear in person before a court within 48 hours of arrest, and the court must find that further detention is in the “interests of justice” before authorizing it.¹² Total detention for deportation purposes cannot exceed 120 days: an initial 30 days, extendable by a further 90 days only on a court warrant.¹³

Lawyers for Human Rights and the International Detention Coalition warned Parliament during hearings that “interests of justice” is insufficiently defined and leaves room for arbitrary detention.¹⁴ If you or someone you know is held past 48 hours without a court appearance, or past the 30- or 120-day caps without a valid warrant, the detention is unlawful on its face.

Asylum Seeker Rights Carved Out by Earlier Rulings

Several precedents from the Constitutional Court continue to govern how the Department of Home Affairs must treat people in the asylum system.

Saidi and Others v Minister of Home Affairs (2018) held that Refugee Reception Officers must extend asylum permits while judicial review proceedings are pending. Refusing extensions during review would risk deporting people to persecution and violate rights to life and security.¹⁵

Scalabrini Centre of Cape Town v Minister of Home Affairs (CCT 51/23), confirmed in December 2023, struck down the “abandonment provisions” of the Refugees Act that automatically terminated the claims of asylum seekers who failed to renew permits within one month of expiry. The Court held that asylum seekers cannot be penalized for state inefficiencies such as queues and backlogs.¹⁶

Ruta v Minister of Home Affairs (2019) established that the Refugees Act takes precedence over the Immigration Act when someone expresses an intent to seek asylum: detention or deportation cannot proceed until the asylum process is finalized. Ashebo v Minister of Home Affairs (2023) qualified this by holding that expressing intent to apply does not trigger automatic release from detention; the prospective applicant must first establish “good cause” for illegal entry or delayed application.¹⁷

In an April 2025 ruling, Judge Moshoana of the Pretoria High Court flagged a recurring problem in these cases: the Minister of Home Affairs frequently fails to appear, leaving courts without opposition and hampering the administration of justice.¹⁸

Undocumented Children Have a Right to School

In December 2019, a full bench of the Eastern Cape High Court ruled in Centre for Child Law v Minister of Basic Education that every child in South Africa has a constitutional right to basic education regardless of immigration status or documentation. The court struck down provisions of the national Admission Policy requiring birth certificates and restricting admission for children classified as “illegal aliens,” and directed schools to accept alternatives such as affidavits from parents or caregivers. The state did not appeal, and the Minister of Basic Education issued a nationwide compliance circular.¹⁹

At the time of the ruling, an estimated 500,000 school-aged children lacked birth certificates, and over 1.1 million undocumented learners were registered.²⁰ Implementation remains uneven. Researchers have reported that many schools remain unaware of the ruling, online enrollment systems in several provinces still require identity numbers as mandatory fields, and principals have faced harassment from Home Affairs officials for admitting undocumented children.²¹

The Policy Backdrop That Will Drive the Next Round of Litigation

Two policy moves sit behind the current wave of cases and will shape the next one.

On 7 June 2026, President Ramaphosa announced a five-pillar “Comprehensive Approach for Migration Management” covering enforcement, border security, anti-corruption, policy reform, and regional cooperation.²² The plan includes hiring 10,000 inspectors to pursue employers of undocumented workers, with imprisonment rather than fines alone,²³ establishing dedicated immigration courts starting near OR Tambo International Airport, and relocating Refugee Reception Centres to border posts beginning with Tshwane.²⁴ Ramaphosa warned that “only the authorised government officials may act against violations of the law,” distancing the plan from vigilantism. Deportations have already risen from 39,672 in 2023/24 to 57,784 in 2025/26, with the Border Management Authority reporting over 450,000 intercepted entries in the past year.²⁵

Cabinet also approved a Final Revised White Paper on Citizenship, Immigration and Refugee Protection on 26 March 2026. It introduces a “First Safe Country Principle” to deflect asylum seekers who have passed through other nations, moves Refugee Reception Offices to ports of entry, proposes a points-based system for work visas and permanent residency, and sets up a biometric “Intelligent Population Register.” The government dropped an earlier proposal to withdraw from the 1951 UN Refugee Convention after the Department of International Relations and Cooperation warned of reputational harm.²⁶ The Law Society of South Africa called the proposed specialized immigration courts “neither necessary nor advisable” and argued the plan prioritizes structural reform over fixing “persistent administrative failures, inconsistent decision-making, and non-compliance with court orders.”²⁷ Refugee advocates have warned that the First Safe Country Principle could lead to refoulement without robust bilateral agreements, and that digitizing asylum processing could lock out people with limited connectivity.

Each of these changes will almost certainly be tested in court. For now, the practical map is clear: no repeat asylum applications, pending clarity on access barriers, hard limits on private immigration policing, 48 hours as the detention trigger for judicial review, and a durable set of precedents protecting people whose claims are already in the system.

1
Constitutional Court of South Africa. Director-General, Department of Home Affairs and Others v Irankunda and Another (CCT 214/24)
2
JURIST. South Africa Court Bans Repeat Asylum Applications
3
Constitutional Court of South Africa. Director-General, Department of Home Affairs and Others v Irankunda and Another (CCT 214/24)
4
SAFLII. Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (Case No 8684/2024)
5
Constitutional Court Collections. Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (CCT 126-25)
6
Scalabrini Centre of Cape Town. Landmark Ruling: Western Cape High Court Declares Provisions of Refugees Act Unconstitutional
7
SAFLII. Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (Case No 2023/044685)
8
Daily Maverick. High Court Bans Dudula From Blocking Access to Hospitals, Clinics and Schools
9
SAHRC. Media Statement: SAHRC Welcomes Judgment in Kopanang Africa Against Xenophobia v Operation Dudula
10
Parliamentary Monitoring Group. Immigration Amendment Bill (B8-2024)
11
Parliamentary Monitoring Group. Department of Home Affairs Litigation and ICT Challenges
12
Parliament of South Africa. Media Statement: National Council of Provinces Passes Immigration Amendment Bill
13
APCOF. Migration and Detention in South Africa
14
Daily Maverick. Detention of Undocumented Migrants Should Be a Last Resort, Lawyers for Human Rights Tells Parliament
15
Constitutional Court of South Africa. Cishahayo Saidi and Others v Minister of Home Affairs and Others (CCT 107/17)
16
Lawyers for Human Rights. Press Statement: Con Court Confirms Abandonment Provisions in Refugee Act Are Unconstitutional
17
De Rebus. Understanding South Africa’s Immigration and Refugee Policies: Key Laws and Recent Court Rulings
18
SAFLII. M.K v Minister of Home Affairs (Case No 2025-046181)
19
International Bar Association. South Africa: Rights of Undocumented Children to Education
20
African Human Rights Law Journal. Rights of Undocumented Children to Education in South Africa
21
SciELO South Africa. Rights of Undocumented Children to Basic Education in South Africa
22
South African Government News Agency. Government Unveils Comprehensive Plan to Tackle Illegal Immigration
23
BBC News. Ramaphosa Unveils Action Plan to Tackle Illegal Immigration
24
Business Day. Immigration Law Reform Gives Courts Greater Role in Deportations
25
defenceWeb. Home Affairs Deportations Surge Nearly 50% in Two Years as SA Tightens Border Security
26
Department of Home Affairs. Final Revised White Paper on Citizenship, Immigration and Refugee Protection
27
Law Society of South Africa. LSSA Commentary on Draft Revised White Paper – Immigration