Author: Charmaine Seerane

Introduction

The “first country principle” is seen as an attempt to bypass established legal protections for refugees. There is as yet no standard approach for determining what constitutes a safe country. Many African countries still criminalize homosexuality, and almost none of the countries that LGBTQI+ refugees pass through on the way to South Africa can be considered “safe” for them.How can we ignore that most African states still criminalize homosexuality? This article argues that the Department of Home Affairs’ draft revised white paper on citizenship, immigration, and refugee protection, which adopts the first safe country principle as a guiding principle for refugee policy and renders asylum seekers ineligible if they pass through ministerially designated safe third countries, triggers a profound constitutional crisis.

Statutory conflict: section 2 vs the white paper

section 2 of the refugees act states that notwithstanding any provision of this act or any other law to the country, no person may be refused entry into the Republic, expelled,extradited or returned to any other country or be subject to any similar measure, if as a result of refusal, expulsion, extradition, return or other measure such person is compelled to return to or remain in a country where he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group or his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing public order in any part or the whole of that country.

The white paper

The refinement and implementation of the “first safe country principle,” which states that asylum seekers who have been granted refugee status or lawful protection in another country, or who pass through safe third countries to reach South Africa, are ineligible for asylum in South Africa. This is designed to combat the phenomenon of applications “picking and choosing” South Africa as their preferred destination for asylum, while passing through other safe countries along the way. To mitigate the risk of refoulement, this reform will require the minister of home affairs to, on an annual basis, designate safe third countries that have ratified the 1951 convention relating to the status of refugees, and to withdraw such designation as and when the need arises.it will also mandate the government to enter into bilateral agreements with safe third countries for the burden of migration in sub Saharan Africa to be shared on a more equitable basis. By adopting this focus on regional migration flows. South Africa will be positioned to support the implementation of the United Nations High Commissioner for Refugees (UNHCR)’s route-based approach, which seeks to shift from focusing on individual countries to entire migration routes.

The threshold barriers hook: Scalabrini 2025

The western cape high court declared the following provisions inconsistent with the constitution of south Africa and therefore unconstitutional, section 4(1)(f),4(1)(h)and4(1)(i) of the Refugees Act, these excluded people from refugee protection on procedural grounds, without considering the merits of their claims, section 21(1B) of the refugees Act and regulations 8(1)(c)(i),8(2),8(3) and 8(4) of the Refugee Regulations, these denied most new asylum seekers access to the system entirely.This shows that if the court struck down procedural exclusions, the first safe country principle, which is another form of procedural exclusion, is likely to face the same fate of unconstitutionality.

Procedural fairness and PAJA: Ground up and LHR

Lawyers for human rights (LHR)also expressed its reservations about the first safe country principle, describing the principle as “highly contested and context specific” they warned that the assumption that a person has accessed or could reasonably access safety in a first country of arrival is often legally and factually incorrect, the pinciples also raises constitutional concerns such as arbitrary exclusion from the asylum system, without an individualised assessment of protection needs, constructive refoulment, where people are denied access to asylum procedures and indirectly forced back to unsafe contexts and violations of the rights to dignity, equality, just administrative action and access to courts. Under PAJA, the rule is inherently unfair. A safe country list fails the reasonableness test of section 33.

The “Abandonment” precedent, Scalabrini v Minister(CC 2024)

 In the Scalabrini (2023)ZACC 45), the court affirmed that the principle of non-refoulement applies as long as a claim for refugee status has not been finally rejected after a proper procedure, which makes it clear that an asylum application cannot be regarded as having been abandoned for the failure to renew a visa.

International obligation

Article 33 of the 1951 Geneva Convention relating to the status of refugees (Refugee Convention) prohibits sending a refugee to a place where their life or freedom might be threatened on account of myriad grounds. 21 Art 33(1) states that no Contracting State shall expel or return ” refoule “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. This prohibition requires a State proposing to remove a refugee or asylum seeker to undertake a proper and thorough assessment as to whether removal to the third country is safe. It also prohibits removal to a country where there is a danger of subsequent deportation to an unsafe country. Therefore, the safety assessment of a third country as a prospective destination for the removal of an asylum seeker must include safety from subsequent refoulement to a place of risk.This aligns with South Africa’s Refugees Act, section 2, and the OAU Convention, as affirmed in Scalabrini ZACC 45.

Administrative burden and backlogs

The court noted that, according to the auditor general, it would take about 68 years to clear, excluding any new asylum applications. This is hardly surprising. The court in Ruta v Minister of Home Affairs  CASE stated that South Africa is among the world’s most burdened countries by asylum seekers and refugees. This is part of our African history and our African present.

The court also stated that the administration of visas, and specifically expired visas, places a significant burden on the department’s officials, because a substantial number of applications are not genuine asylum applications, and applicants know that their applications will be rejected. As a result, the department has some 737,315 inactive visa applications under section 22 of the Refugee Act. These inactive cases far exceed the number of active cases, creating a massive backlog and delaying the finalisation of asylum applications.

Conclusion 

The first safe country principle conflicts with non-refoulement, PAJA fairness, and precedents like Scalabrini, risking a constitutional crisis. South Africa must prioritize individualized assessments and regional cooperation without procedural exclusions to uphold its obligations.

Bibliography

Scalabrini Centre of Cape Town v Minister of Home Affairs 2025 (CC 2024) (s.Afr.) 

Section 2 of the Refugee Act 130 of 1998

Ohene Yaw Ampofo, Rights organizations criticize the proposed refugee law 

GroundUp or Lawyers for Human Rights(LHR)

Scalabrini Centre Press Statement on 2025 Ruling 

Groundup: Rights organisations criticise proposed refugee law(Feb 2026

Lawyers for Human Rights Legal Brief on the “First Safe Country” Principle