The Constitutional Court has overturned a Supreme Court of Appeal (SCA) ruling that had allowed asylum seekers whose applications were denied to submit fresh claims while staying in South Africa.
The apex court delivered its judgment on Tuesday, bringing to a close a legal battle involving two Burundian nationals who sought to lodge new asylum applications years after their original claims had been rejected.
The decision clarifies that once an asylum application has been finally determined, applicants cannot file repeated applications in an attempt to secure a new hearing.
Burundian Nationals Sought To Reapply After Burundi Violence
The case centred on Amina Irankunda and Arava Niyonkuru, who arrived in South Africa from Burundi between 2008 and 2012.
Both applied for asylum under the Refugees Act 130 of 1998.
A Refugee Status Determination Officer rejected their applications, finding them to be manifestly unfounded.
The Standing Committee for Refugee Affairs confirmed those decisions in February and December 2014. Neither ruling was challenged.
On 3 August 2018, the pair submitted new asylum applications, arguing that they had become sur place refugees following widespread political violence that erupted in Burundi in 2015.
On 29 November 2018, they approached the High Court urgently to compel the Department of Home Affairs to issue asylum seeker visas under section 22 of the Refugees Act while their main application was being considered.
In the main application, they sought an order compelling the Minister of Home Affairs to accept and process their new claims as sur place refugees.
High Court Victory Overturned After Main Application Failed
The applicants in the matter were the Director-General of Home Affairs, the Chief Director of Asylum Seeker Management in the Department of Home Affairs, the manager of the Cape Town Refugee Reception Office, the Minister of Home Affairs, and the chairperson of the Standing Committee for Refugee Affairs.
The High Court ruled that the respondents had a clear right to have their applications considered and were entitled to the section 22 visas they had requested.
However, the main application was later dismissed.
The court found that the respondents should have challenged the rejection of their original asylum applications through judicial review rather than seeking to compel authorities to consider fresh applications.
Home Affairs Welcomes Constitutional Court Victory
The Department of Home Affairs said the ruling was a major victory in its efforts to prevent abuse of South Africa’s asylum system.
“In its majority ruling, the Court upheld the Department’s appeal against an earlier ruling from the Supreme Court of Appeal by confirming that repeat asylum applications are not permitted once an original application has been finally determined,” said department spokesperson Carli van Wyk.
She said the judgment marked another important step in the department’s efforts to clamp down on abuse of the asylum system and restore the rule of law in immigration and refugee management.
“The Court’s ruling prohibiting endless repeat applications by asylum seekers whose original applications have been rejected comes just weeks after Cabinet approved the Revised White Paper on Citizenship, Immigration and Refugee Protection, which introduces the first-safe country principle to similarly end the practice of asylum seekers ‘picking and choosing’ South Africa as their preferred destination in the region.”
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Van Wyk said the latest developments showed that the department was rebuilding the system “from the ground up” to better serve South Africa’s interests.
Minister of Home Affairs Leon Schreiber added, “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.”
