The Constitutional Court has ruled that asylum seekers whose applications have been finally rejected cannot submit repeat applications while remaining in the country.
Image: Itumeleng English/Independent Newspapers
The Constitutional Court has overturned a Supreme Court of Appeal (SCA) ruling that allowed asylum seekers whose applications had been denied to reapply while remaining in the country.
The apex court handed down the ruling on Tuesday.
The case relates to Burundian nationals Amina Irankunda and Arava Niyonkuru, who fled their country for South Africa between 2008 and 2012.
The duo 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 August 3, 2018, arguing that they had become sur place refugees because of widespread political violence that erupted in Burundi in 2015.
On November 29, 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 refugees.
The applicants were the director-general 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 Supreme Court of Appeal by confirming that repeat asylum applications are not permitted once an original application has been finally determined,” said department spokesperson Carli van Wyk
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’ South Africa as their preferred destination in the region.”
Van Wyk said the recent developments demonstrated that the department was making rapid progress in rebuilding the system “from the ground up” to better serve South Africa’s interests.
Schreiber added, “This judgment from the highest court in the land is an affirmation of the unprecedented progress we are making in restoring the rule of law and clamping down on abuse in the migration and asylum systems.
“It further demonstrates that our commitment to systemic reform - not in opposition to, but anchored in our Constitution - is rapidly resolving problems that once seemed insurmountable.”
simon.majadibodu@iol.co.za
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