ConCourt rules failed asylum seekers have no right to reapply under Refugees Act

The Constitutional Court has ruled that the Refugees Act 130 of 1998 does not give a failed asylum seeker the right to make a subsequent application for asylum, setting aside an order of the Supreme Court of Appeal that had allowed two Burundian nationals to lodge fresh claims.

In a majority judgment written by Kollapen J, with Mlambo DCJ, Mathopo J, Mhlantla J, Musi AJ, Savage J and Tshiqi J concurring, the Court held that the Act cannot bear the weight of subsequent asylum applications as it stands. The judgment was handed down on 12 May 2026, following a hearing on 10 November 2025. The account here rests on the Court’s own post-judgment media summary, which is an explanatory note and not binding on the Court.

What the case was about

The respondents, Amina Irankunda and Arava Niyonkuru, are Burundian nationals who fled to South Africa between 2008 and 2012 and applied for asylum. Their applications were refused by a Refugee Status Determination Officer as manifestly unfounded, a decision confirmed by the Standing Committee for Refugee Affairs in February and December 2014. Those decisions were not challenged.

In August 2018 the two lodged new applications, arguing they had become sur place refugees because of the political violence that erupted in Burundi in 2015. When the Department did not process the claims, they went to the High Court to compel it to grant them asylum seeker visas under section 22 of the Act. The High Court found they had a clear right to have their applications considered and granted the visas, but dismissed the main application on the basis that the correct route was a judicial review of the original refusal.

The Supreme Court of Appeal then upheld their appeal, holding that once a sur place claim has been made there is no basis to demand that an asylum seeker return home pending determination, nor to reject the claim because an earlier one had been finalised. It directed the Department to accept the applications.

What the majority decided

The Court granted leave to appeal and condonation for a 14-day delay in filing, finding the matter engaged its constitutional and general jurisdiction because it concerns legislation passed to give effect to South Africa’s international and constitutional obligations to asylum seekers, and raises an arguable point of law of significance beyond the parties.

On the substance, the majority drew a distinction between a first-time sur place claim and a subsequent application by someone whose earlier claim has failed. A first-time sur place claim, it found, is no different from an ordinary asylum claim and must be processed the same way. A subsequent claim rests on a different footing.

The Court examined the language, context and purpose of the Act. Beyond defining what an abusive application is, it found nothing in the section 1 definition or the Act as a whole that provides for a right to make a subsequent application. If the Act intended such a right, the majority reasoned, it would at least describe the right, what it entails and how it is to be exercised, which is how other jurisdictions treat the difference between first and later claims. It considered the approach in New Zealand, the United Kingdom and the European Union, all of which govern repeat requests differently from first applications.

The Act cannot bear the weight of subsequent asylum applications, as it stands.

Reading the Act as the respondents argued, the majority held, would mean every subsequent application, whatever its merit, would follow the ordinary course of an interview, a full determination, and the review and appeal rights attached to a first application. An unsuccessful applicant would then never be capable of being returned, a cycle the Supreme Court of Appeal itself described as never-ending. That, the Court found, is not the system described in Ruta v Minister of Home Affairs.

The majority made clear it was not deciding whether, as a matter of policy, such a right should exist. That question was not pleaded and was not before the Court.

The dissent

Rogers J and Nicholls AJ dissented jointly, holding that the Act is reasonably capable of an interpretation that allows a further application after a first one is rejected. They rejected an absolute prohibition.

Using the example of two people in identical circumstances, the dissent noted that one whose first application was refused would face removal when conditions in her country deteriorate, while another who never applied earlier could apply and receive asylum. That distinction, they found, is irrational and inimical to the rule of law.

The dissenting judges relied on section 39(2) of the Constitution, which requires legislation to be read in a way that avoids constitutional invalidity, and section 233, which requires a court to prefer an interpretation consistent with international law. They held that non-refoulement protects a cluster of constitutional rights, applies to all foreigners including unlawful entrants, and is a non-derogable norm. They also pointed to the constitutional injunction to protect the best interests of the child, noting that children’s asylum status depends on a caregiver’s application.

The dissent found support in the Act’s own language. Sections 3 to 5 deal with qualification, exclusion and cessation but do not treat a prior rejection as a ground of cessation or exclusion. Section 21, which governs the right to apply for asylum, does not confine a person to a single application. The definition of an abusive application, which covers the rejection of one or more prior applications without substantial changes in circumstances, shows the legislature contemplated later applications and chose to treat them as abusive only where there is no substantial change.

The dissent also rejected the argument that the Act lacks a mechanism for later applications. An application made without a substantial change can be rejected as abusive, and the Minister has regulation-making powers to address disclosure of prior refusals, identity checks, summary rejections and screening of repetitive claims. A lack of a specially tailored mechanism, they held, is no justification for reading a limitation into section 21. They would have granted leave to appeal but dismissed the appeal.

What it means

The order of the Supreme Court of Appeal is set aside and replaced with an order dismissing the appeal from the High Court. The Department of Home Affairs is not obliged to accept the two subsequent applications. The Scalabrini Centre of Cape Town and its trustees were admitted as amici curiae in the matter.

The judgment leaves the policy question open. Whether Parliament should create a framework for repeat applications, and what that framework would require, was not before the Court, and the majority said so expressly. The full judgment is available on the Constitutional Court’s website.