The Constitutional Court has ruled that rejected asylum seekers cannot submit repeated applications once their original application has been been finalized, a decision aimed at curbing abuse of South Africa’s asylum system.
The ruling dismisses a previous Supreme Court of Appeal decision that had allowed asylum seekers who were denied refuge to reapply while remaining in South Africa.
The case stems from two Burundian nationals whose initial asylum applications were rejected in 2014. Immigration lawyer Ashraf Essop said the ruling is “a very important ruling,” noting that there were two dissenting judges in the matter.
The majority ruling was handed down by Justice Kollapen, who Essop said took a detailed look at the entire matter.
“Principally what he’s saying is the following: You cannot fail in your asylum seeking application and then change the basis on which you seek asylum,” Essop explained.
The judgment distinguished between what Essop described as “sur place asylum seeking” — when someone leaves their country of origin under normal conditions but a change of circumstances back home subsequently necessitates an asylum application — and claims based on personal persecution linked to religion, race, or other protected grounds.
Essop noted that the Constitutional Court found that judicial review, not a fresh asylum application, is the correct remedy for a rejected applicant facing new persecution. However, he acknowledged that judicial review applications are time-bound and costly.
Under the Promotion of Administrative Justice Act, applicants have 180 days from a decision that affects them to bring the matter before a judicial officer, provided they have exhausted internal remedies such as reviews at the appeals division of refugee affairs or the standing committee.
Asked whether the ruling will meaningfully reduce asylum backlogs, Essop cautioned: “I don’t think it’s going to be a magic wand to wipe out the backlog. Each and every application has to be determined on its merits… He can’t just use a paintbrush approach.”
He added: “The fact that you reach the end of the road internally now means that you have no other chance to apply for asylum on any other basis.”
Essop noted that the dissenting judges raised the principle of non-refoulement — which protects individuals from being returned to countries where they would face further harm — and said the proposed immigration reform White Paper introduces a “first safe country principle,” with the minister entering negotiations with neighboring countries to share the burden of people coming into South Africa.
