ConCourt Rules That Rejected Asylum Seekers Are Prohibited from Reapplying

The Constitutional Court (ConCourt) has determined that individuals whose asylum applications have previously been denied cannot file new applications based on different grounds for seeking asylum.

The key issue in this case was whether the Refugees Act offers protection to those classified as “sur place” refugees – individuals who were not regarded as refugees when they left their nations but subsequently became refugees due to changes in conditions in their home countries.

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In a majority ruling penned by Justice Jody Kollapen, the court concluded that the act protects first-time “sur place” applicants, but not individuals whose previous asylum applications have been turned down.

This ruling indicates that an individual may submit only one application for refugee status in South Africa.

Burundi asylum seekers rejected

The case was initiated by Burundian nationals Amina Irankunda and Arava Niyonkuru. They sought asylum in South Africa in 2008 and 2012 respectively, citing fears of political persecution in Burundi due to events occurring at that time in their home country.

Their applications were denied in 2014 as “manifestly unfounded.”

In 2015, the political violence in Burundi intensified following then-president Pierre Nkurunziza’s announcement to contest for a third term. Irankunda and Niyonkuru asserted that the deteriorating situation rendered it unsafe for them to return.

In 2018, they filed new asylum applications claiming they had become “sur place” refugees.

The Department of Home Affairs rejected these applications, asserting that the Refugees Act prohibits anyone whose asylum claim has already been refused from applying again.

In November 2018, the duo approached the high court urgently, seeking to compel Home Affairs to evaluate their new applications as sur place refugees.

The high court dismissed their case, stating that permitting repeated applications could lead to “an endless cycle of asylum applications.”

They subsequently appealed to the Supreme Court of Appeal (SCA), which ruled in their favor in June 2024.

The SCA determined that once a sur place claim is initiated, there is no justification to require asylum seekers to return to their home country while their application is under review, nor to dismiss the application due to a prior failed one.

The ConCourt overturned the SCA’s ruling.

The majority opinion distinguished between initial sur place applications and subsequent applications made following the rejection of a former asylum claim.

The court ruled that the Refugees Act does allow first-time sur place claims, as these are treated similarly to any other asylum claim based on persecution. Nevertheless, since the act does not authorize reapplications, a subsequent sur place claim is not permissible.

The court remarked that the Refugees Act remains silent “on the possibility of subsequent applications,” as well as on the processes for considering and processing such applications.

It was noted that countries like the UK, Canada, and EU members have specific legal frameworks addressing repeat refugee applications, in contrast to South Africa’s lack of such provisions.

The majority expressed that if the court compelled the department [Home Affairs] to evaluate repeat applications, it would amount to “stretching the limits of interpretation [of the act] to unacceptable extents,” essentially legislating from the bench.

Read: Law clinics overwhelmed as Home Affairs excludes asylum seekers from the system [2025]

The court did not rule on the constitutionality of the act regarding the inability to reapply.

The sole matter considered was one of interpretation: does the act allow such claims or not.

The majority upheld Home Affairs’ appeal, ordering each party to bear its own costs.

Dissent warns ruling undermines legal principles

Justices Owen Rogers and Acting Justice Caroline Nicholls dissented.

They contended that the Refugees Act should be interpreted in accordance with the non-refoulement principle, which prohibits sending individuals back to countries where they could face persecution or serious rights violations.

Given that asylum seekers often have dependent children, it is paramount to consider the principle prioritizing the best interests of the child.

Read: Women refugees fleeing violence seek safety in South Africa: but they don’t find it [2022]

Utilizing a hypothetical situation of two asylum seekers in identical circumstances receiving different treatments, the dissent argued that the majority’s conclusion introduced arbitrariness and undermined equal protection under the law.

“In our view, interpreting the Act to allow reapplications is a reasonable interpretation that does not distort the language of the Refugees Act,” the dissent concluded.

The two justices would have dismissed the appeal.

© 2026 GroundUp. This article was first published here.