The Constitutional Court has overturned a SCA ruling that allowed asylum seekers whose applications had been denied to reapply while remaining in the country.

The case relates to Burundian nationals Amina Irankunda and Arava Niyonkuru, who fled their country for SA between 2008 and 2012. 

IoL reports that they applied for asylum in terms of the Refugees Act 130 of 1998. Their asylum applications were rejected by a Refugee Status Determination Officer on the basis that they were manifestly unfounded.

The Standing Committee confirmed those decisions in February and December 2014, respectively, and the rulings were not challenged.

The respondents lodged new asylum applications with the department on 3 August 2018, arguing that they had become place refugees because of widespread political violence that erupted in Burundi in 2015.

On 29 November 2018, the respondents approached the High Court on an urgent basis to compel the department to grant them asylum seeker visas in terms of section 22 of the Refugees Act, pending the final relief sought in the main application.

That application sought to compel the Minister to accept and consider the asylum seekers’ applications as sur place (on the spot) refugees. 

IoL reports that the applicants were the DG of Home Affairs; the chief director of asylum seeker management in the Department of Home Affairs, the Cape Town Refugee Reception Office manager, the Minister of Home Affairs, and the chairperson of the Standing Committee for Refugee Affairs.

The High Court held that the respondents had a clear right to have their asylum applications considered and were therefore entitled to the section 22 visas they sought. 

However, the main application was later dismissed on the basis that the respondents should have challenged the department’s decision to reject their first asylum applications through judicial review, rather than lodging an application to compel consideration of subsequent applications.

The Department of Home Affairs welcomed the judgment, describing it as a significant victory against abuse of the asylum system.

‘In its majority ruling, the court upheld the department’s appeal against an earlier ruling from the SCA by confirming that repeat asylum applications are not permitted once an original application has been finally determined,’ said department spokesperson Carli van Wyk.

IoL reports that she said the judgment marked the latest major step in the department’s efforts to clamp down on abuse of the asylum system and restore the rule of law in the management of immigration and refugee matters.

‘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” SA as their preferred destination in the region.’

Full IoL report

Judgment