By Charmaine Ndlela
The Department of Home Affairs has welcomed a Constitutional Court ruling confirming that repeat asylum applications are not permitted once an original application has been finally determined, saying it strengthens the integrity of South Africa’s immigration and refugee systems.
The majority ruling, handed down on 12 May, upheld the department’s appeal against an earlier Supreme Court of Appeal (SCA) judgment that had directed officials to accept fresh asylum applications from two Burundian nationals.
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The case involved Amina Irankunda and Arava Niyonkuru, who fled Burundi and applied for asylum in South Africa between 2008 and 2012. Their applications were refused by a Refugee Status Determination Officer and confirmed by the Standing Committee for Refugee Affairs in 2014.
They lodged new asylum applications in August 2018, arguing that they had become sur place refugees because of widespread political violence that erupted in Burundi in 2015. A sur place refugee is someone who was not a refugee when they left their country, but later becomes one because of changed circumstances in that country.
The SCA found in their favour, holding that once a sur place claim had been made, there was no basis to demand that asylum seekers return to their country of origin while that application was pending, or to reject the application because an earlier claim had already been finalised.
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However, the Constitutional Court’s majority judgment found that the Refugees Act does not create a clear right for failed asylum seekers to lodge subsequent asylum applications once an original application has been finally determined.
The majority held that the Act, as it stands, “cannot bear the weight of subsequent asylum applications” and that allowing repeat applications without a clear framework would place them in a system not designed to accommodate them.
The court also warned that it could create a “never-ending cycle” in which an unsuccessful asylum seeker would never be capable of being returned to their country of origin.
In a joint dissent, Justice Owen Rogers and Acting Justice Nonkosi Mhlantla Nicholls found that the Act could reasonably be interpreted to allow a further asylum application where there had been a material change in circumstances after the first application was rejected.
The dissenting judges warned that an absolute bar on further applications could undermine the principle of non-refoulement, which protects people from being returned to countries where they may face persecution or serious harm. They said a person who later qualifies for refugee protection should not be barred from applying simply because an earlier application had failed.
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The Department of Home Affairs said the majority judgment was a significant step in its efforts to curb abuse of the asylum system and restore the rule of law in immigration and refugee management.
The ruling comes weeks after Cabinet approved the Revised White Paper on Citizenship, Immigration and Refugee Protection, which Home Affairs says introduces the first-safe-country principle aimed at ending the practice of asylum seekers “picking and choosing” South Africa as their preferred destination in the region.
Minister of Home Affairs Dr Leon Schreiber said the judgment affirmed government’s efforts to reform the migration system.
“This judgment from the highest court in the land is an affirmation of the unprecedented progress we are making in restoring the rule of law and clamping down on abuse in the migration and asylum systems. It further demonstrates that our commitment to systemic reform – not in opposition to, but anchored in our Constitution – is rapidly resolving problems that once seemed insurmountable.”
Statistics South Africa’s latest Migration Statistics Report, based on the 2022/23 Income and Expenditure Survey, says South Africa is home to more than three million immigrants.
