Constitutional Court Shuts Door On Repeat Asylum

The Constitutional Court has ruled that failed asylum seekers do not possess an inherent right under the Refugees Act to submit subsequent applications for asylum once their initial claims have been finally rejected.

The judgment, delivered on May 12, 2026, marks a major victory for the Department of Home Affairs. Writing for the majority, Justice Kollapen held that the country’s current refugee architecture is strictly designed around a single, first-time application process and cannot accommodate an endless cycle of successive filings. The ruling effectively sets aside a previous decision by the Supreme Court of Appeal (SCA), which had opened the door for failed applicants to reapply based on changed personal circumstances or escalating violence in their home countries.

The protracted legal battle stems from a dispute involving two Burundian nationals, Amina Irankunda and Arava Niyonkuru, who arrived in South Africa in 2008 and 2012 respectively. After their initial asylum applications were formally and finally rejected by the Department as “manifestly unfounded” in 2014, a decision which was confirmed by the Standing Committee for Refugee Affairs (SCRA), both women remained in South Africa unlawfully, becoming “illegal foreigners” under the Immigration Act.

However, in 2018, the respondents sought to submit fresh asylum applications. They argued that a surge in political violence in Burundi starting in 2015 had rendered it unsafe for them to return, effectively transforming them into sur place refugees i.e., individuals who enter a country on one basis but are involuntarily rendered refugees due to supervening political events in their country of origin. When the Cape Town Refugee Reception Office refused to accept their new applications, the respondents turned to the courts. While the High Court dismissed their main challenge, the SCA subsequently favored the respondents, ruling that a blanket failure to consider subsequent applications constituted a reviewable administrative error.

Overturning the SCA’s findings, Justice Kollapen, writing for the majority, conducted a meticulous text-and-context analysis of the Refugees Act. The majority concluded that while the Act domesticates crucial international human rights treaties and explicitly incorporates the foundational principle of non-refoulement, which is the prohibition against returning an individual to a country where they face persecution, it remains entirely silent on any mechanism or right to lodge subsequent applications.

“Examining other provisions of the Act, what emerges is that the Act, while silent on subsequent applications, can only reasonably be interpreted as being designed for and applying to a first-time application,” Kollapen J observed.

The majority noted that the statutory machinery requires a full disclosure of facts at the outset but provides no procedural mechanisms, thresholds, or specialised criteria to screen or filter repeat applications.

A central pillar of the Court’s reasoning focused on the severe operational risks that a recurring re-application system would pose to state administration. It warned that allowing an unchecked right to reapply would result in catastrophic consequences for the proper administration of the asylum and the immigration system. Under the current statutory design, lodging an asylum application automatically triggers a protective temporary visa and shields the individual from deportation. If failed applicants could repeatedly file new applications without any statutory limit, they could indefinitely paralyse the state’s capacity to enforce deportation, thus creating a system ripe for exploitation.

The Court further addressed the argument raised by the respondents regarding a “legislative lacuna,” or an unintended gap in the law that fails to protect sur place refugees facing genuine changes in their home countries. While acknowledging that international bodies like the United Nations High Commissioner for Refugees (UNHCR) recommend dedicated legislative frameworks for handling subsequent applications to balance fairness with efficiency, the Court emphasised that the question of a statutory gap was not properly pleaded or argued before it.

Consequently, the Court held that it could not step into the shoes of the legislature to manufacture a model for subsequent applications out of thin air, as doing so would violate the constitutional separation of powers. Furthermore, the Court added, to force the Act to bear the weight of subsequent asylum applications, as it stands, will place those applications in a framework which was not designed to accommodate them.

You can read the full Director-General, DHA v Irankunda judgement here.