If a foreign national arrives in South Africa unlawfully and takes as long as 15 months to apply for asylum, are they barred from doing so? Is the person liable for deportation or should they be given an opportunity to at least apply for asylum? The Constitutional Court recently considered these questions.
Background
Alex Ruta, a Rwandan, arrived in South Africa in December 2014. He came via Zimbabwe and did not enter the country with a visa.
In March 2016, he was arrested for a traffic offence for which he was later convicted. Once he was detained, the Department of Home Affairs arranged for him to be deported. Ruta, however, opposed this by applying for asylum.
The High Court ruled in Ruta’s favour and found that entering South Africa unlawfully does not bar you from applying for asylum. But the Supreme Court of Appeal overturned the High Court’s decision. Applications for asylum must be made within a reasonable time, the court said. Because Ruta took 15 months to apply for asylum he was barred from doing so and liable for deportation.
Constitutional Court
By the time the matter came before the Constitutional Court, Ruta had already been released from detention due to the earlier High Court order. His application for asylum had been made and the outcome was pending.
Although the case was now moot (hypothetical), the Constitutional Court nevertheless decided to rule on the matter because of its immense public importance. Lawyers for Human Rights represented Ruta. The judgment by Justice Edwin Cameron was unanimous.
The court had to decide two related issues. First, how a conflict between the Immigration Act and the Refugees Act should be resolved. Second, what effect if any a delay has on an application for asylum.
The principle of non-refoulement
The court pointed out that the Refugees Act embodies the international human rights law principle of non-refoulement. This is the principle that no person may be returned to a country where they are at risk of their fundamental rights being violated. This is the foundational principle of refugee law which informs the interpretation of every provision of the Refugees Act.
Also, the principle has a bearing on how any dispute related to an asylum seeker or refugee should be resolved. This would mean that the principle even trumps provisions of the Immigration Act to the extent that they apply to refugees.
The court highlighted that the Refugees Act provides protection for both de facto and de jure refugees. The latter refers to those who have already been granted asylum under international law whereas the former refers to those whose refugee status has not yet been determined under South African law. The effect of this principle means that a state is obliged to provide every person with an opportunity to at least apply for asylum including those who have entered a country unlawfully.
The conflict between the Immigration Act and the Refugees Act
Because Ruta entered the country illegally, he fell within the definition of an illegal foreigner in the Immigration Act who is liable for deportation. However, the principle of non-refoulement emphasises the need to give foreign nationals the opportunity to apply for asylum. The court had to decide how to resolve this tension between the Immigration Act and the Refugees Act.
The Minister of Home Affairs argued that only foreign nationals who enter South Africa lawfully and obtain an asylum transit visa at the border may apply for asylum. He argued that anyone else should be regarded as an illegal foreigner who is liable for deportation. The Minister’s view was that the

Refugees Act has no bearing on Ruta’s case.
However, the court rejected the Minister’s argument for several reasons. First, it pointed out that the Minister’s argument was based on a flawed premise: namely, that allowing Ruta to apply for asylum meant that South Africa’s borders would be rendered porous enabling all and sundry to cross the border at whim.
But, the court found that the Refugees Act does not undermine South Africa’s sovereignty or national security in any way. To the contrary the Refugees Act only extends protection to bona fide refugees and allows fraudulent or dishonest applications to be rejected. Also, it enables the Minister to withdraw a person’s refugee status in some circumstances. The court said it was clear that the Refugees Act takes both a compassionate and pragmatic approach to how refugees should be accommodated while respecting national sovereignty.
The court also pointed out that it was clear from the detailed provisions of the Refugees Act that it is the only piece of legislation that determines who may apply for asylum and how an application for asylum should be made. All of this is absent from the Immigration Act. The court found that the Immigration Act and Refugees Act should be read in harmony.
But there were also other reasons why the approach adopted by the Minister should be rejected. The Minister’s view ignores the harsh reality that asylum seekers in Southern Africa and elsewhere face, the court said. Many people are displaced and find themselves fleeing terrible circumstances.
The Minister’s argument that people in Ruta’s position should merely apply for their deportation to be set aside was misplaced, the court said. The court pointed out that the Minister’s approach fails to recognise that asylum seekers are a vulnerable group who do not have access to the information or resources which would be required to challenge their deportation in court.
The court found that all of this means that a person who has delayed to apply for asylum is still entitled to apply for asylum. This did not mean that delay was irrelevant, the court said. Delay can, for example, be used to determine the authenticity of an asylum seeker’s claim to asylum. But this determination must be left to a Refugee Status Determination Officer to make.
Lastly, the court found that Ruta’s conviction for traffic offences did not bar him from applying for asylum. This was because the prohibition for applying for asylum if one has been convicted of an offence only applied to offences committed outside of South Africa.
Why this case is important
This case emphasises that South Africa has an obligation under international law to provide every person who enters its border with an opportunity to apply for asylum. The court has taken a compassionate approach to the situation of many asylum seekers who for various reasons are unable to enter the country lawfully.
The case also prevents undue delay being used as a reason to reject an application for asylum.
Taken together, these two findings acknowledge that asylum seekers face difficult circumstance. They are often fleeing from gross violations of their human rights. It is hoped that this compassionate approach to immigration will be be adopted by Home Affairs.
www.samigration.com V.3697

One of the highlighted topics: Critical Skills Visa.

- Key Insight: Is your profession on the Critical Skills List? This visa is your fast track to working in South Afr...
- This matter relates to critical skills visa and its broader implications.
- Individuals are advised to seek professional guidance.

Is your profession on the Critical Skills List? This visa is your fast trac V.6139
Click here for full article

One of the applicants, Phindile Mazibuko, became a victim of identity theft in 2012 when fraudulent transactions occurred, using her personal details.

-The Pretoria High Court found that the department of home affairs had violated constitutional rights without due process.
-Only half of Lawyers for Human Rights` test group has been unblocked, while 385 000 identities remain blocked nationwide.
-LHR appeals extension, urges affected people to seek help now.

Lawyers for Human Rights (LHR) are intensifying pressure on the department of home affairs over the national ID-blocking crisis, accusing the state of acting too slowly to unblock qualifying individuals despite a landmark court ruling.

In January last year, the Pretoria High Court found that the department`s practice of blocking IDs without due process was unlawful and unconstitutional. One of the applicants, Phindile Mazibuko, a Swati citizen and South African permanent resident since 1998, fell victim to identity theft in 2012 when fraudsters used her personal details.

 V.6133
Click here for full article

The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

What does this mean for travelers? V.6128
Click here for full article

The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

What does this mean for travelers? V.6129
Click here for full article

A Washington state mother and her 6-year-old son have been released after spending more than three weeks in US immigration detention due to a brief trip to Canada and a small paperwork mistake, her attorney told CNN on Saturday.

Sarah Shaw, a New Zealand citizen who has lived legally in the US since she arrived in 2021, was detained at the Blaine, Washington, Customs and Border Protection checkpoint when returning home after dropping her two oldest children off at the Vancouver airport for a flight to visit their grandparents in New Zealand. Shaw, 33, chose the flight out of Vancouver because it was direct and she didn`t want her children to have to navigate a layover alone, her attorney Minda Thorward, told CNN.

 V.6130
Click here for full article

On 22 July 2025, the Gauteng High Court dismissed Sitrusrand Boerdery`s review of the Department of Employment and Labour`s refusal to issue a Working Conditions and Salary Benchmarking Certificate, an essential precondition for obtaining corporate visas under the Immigration Act.

Acting Judge Kekana AJ held that the Department`s decision was lawful, rational and procedurally fair. This judgment illustrates how businesses can - and must - structure their corporate visa applications to meet statutory requirements, and how legal practitioners should prepare robust review challenges when administrative authorities decline to recommend foreign-work permits.

 V.6131
Click here for full article

The United States could forfeit an estimated 9.4 billion dollars in visitor spending over the next three years following the introduction of a new 250 dollars `visa integrity fee,` according to industry groups, who warn the policy risks undermining tourism and costing thousands of jobs.
The United States’ decision to introduce a 250 dollars `visa integrity fee` on international visitors has triggered sharp criticism from the global tourism industry, with officials warning that the measure could deter millions of travellers and cost the U.S. economy billions.
The 250dollar `visa integrity fee,` part of the One Big Beautiful Bill Act signed on July 4, 2025, will take effect later this year. According to immigration law firm Envoy Global, it applies to all nonimmigrant visa holders which include students, tourists, temporary workers, and business visitors particularly from African countries. V.6132
Click here for full article

The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

What does this mean for travelers? V.6127
Click here for full article

1. Right to Legal Representation•You have the right to consult with a legal representative.•Contact an immigration practitioner, legal aid clinic, or attorney urgently.•Do not sign any documents without understanding them fully. 2. Section 34 of the Immigration Act•You must be brought to court with 48 hours to confirm arrest but you can remain locked up very long as courts figure out what to do with you •If you`re found to be illegally in South Africa, you may be detained for up to 30 days (extendable by a magistrate) pending deportation.•BUT this cannot happen arbitrarily. You must be informed of your rights, and Home Affairs must follow due process.- becomes a nightmare , you could lose your job , business , place to stay V.6121
Click here for full article

Driving for Bolt, Uber, Mr D, or Checkers Sixty60?If you`re undocumented, you`re risking more than just your income.The Risks if You`re Not Legal: - Vehicle impoundment - Heavy fines - Arrest & deportation - Permanent bans from working in SA V.6122
Click here for full article