What recourse is available for asylum seekers if their first application was rejected?

The long answer

I think it’s worth clarifying the question that the Concourt had to answer, and what it did not answer: Judge Jody Kollapen said that the Court had to decide whether there was a clear right in the Refugee Act to submit a subsequent asylum application after a first application was refused. 

The original court case dealt with two Burundian nationals, Amina Irankunda and Arava Niyonkuru, who had applied for asylum in 2008 and 2012 respectively, and their applications for asylum had been rejected in 2014 as “manifestly unfounded”. In 2015, conditions had become dangerous in Burundi. In 2018 they made fresh asylum applications, arguing that they had become "sur place" (in place) refugees due to the changed circumstances in their home country. As that was rejected by Home Affairs, they applied to the High Court to review the decision that they could not apply a second time after their applications had been rejected. The High Court said that the principle of non-refoulement and the protections it gave went on until the final decision about the asylum application. It said allowing subsequent applications after a rejection, without the applicants leaving the country, would result in a never-ending cycle of applications for asylum.

The Burundians went on to appeal to the Supreme Court, which said that the right to apply a second time existed, thus rejecting the High Court ruling. The DG of Home Affairs then appealed to the Concourt.

At the Concourt, Judge Jody Kollapen said that it was the first time in South African law that the concept of a “sur place” refugee had been raised, and so it was important to understand what it meant:  “Sur place” literally means, “on the spot”, so a “sur place refugee” is someone who was not a refugee when they left their country, but who becomes a refugee when their circumstances, or the circumstances in their country, change. It is agreed that a person in that situation can make an application for asylum sur place, which is a first application.

It was therefore useful, he said, in order to avoid any conceptual confusion, to refer to sur place claims made in a first application as first-time applications. In any subsequent application the defining feature is that it is a subsequent application.

He said that it was in the interests of justice for the Court to decide whether the Act permits subsequent asylum applications and, if so, on what basis. He said that some years ago it had been noted that there was a blank space or “lacuna” in the Refugee Act as it didn’t say anything about a right to bring a subsequent application, but he emphasised that the Court was not required to answer the question of whether the Refugee Act should be amended to fill in this blank space. It simply had to decide whether there was a clear right in the Refugee Act to submit a subsequent application for asylum if the first application had been refused. 

A GroundUp article reported that in the majority judgment written by Justice Jody Kollapen in May 2026, the court found that the Act protects first-time “sur place” applicants, but not people whose earlier asylum applications had already been rejected.

Ground Up said that the ruling means that a person may only apply once for refugee status in South Africa.

Judge Kollapen said that this conclusion did not mean that the Court had concluded that there is no right to make a subsequent application – it simply says that such a right is not expressed in the Act.

So where does this leave you?

This is how the Refugee Act presently works:

In South Africa, refugees are given asylum under both international law (the principle of non-refoulement) and South African law in Section 2 of the Refugee Act. Non-refoulement means that no one can be refused entry, expelled or forced to return to countries where 

a) he or she may “be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group” or 

b) their “life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country.” 

And then as you know, there is the whole business of applying in person for asylum to a Refugee Status Determination Officer (RSDO) at a Refugee Reception Office (RRO). The RSDO must decide to do one of the following three things:

(a)      grant asylum;

(b)      reject the application as manifestly unfounded, abusive or fraudulent; or

(c)      reject the application as unfounded.

The Standing Committee on Refugee Affairs (SCRA) can monitor and supervise these decisions and can approve or refer any decision back to the RRO with recommendations. The RSDO must give a person written reasons for rejection and must inform them of their right to appeal under Section 24B. 

If an application is rejected as manifestly unfounded, abusive or fraudulent, the SCRA must review it and either confirm, set aside or substitute the decision of the RSDO. If the SCRA confirms the rejection, the asylum seeker is dealt with as an illegal foreigner in terms of the Immigration Act.

But if an application is rejected as “unfounded” as in c) above, the person can appeal to the Refugee Authority Appeals (RAA), who can confirm, set aside or substitute the decision. If new relevant material is presented in the appeal, the RAA must refer the application back to the RSDO to deal with the application in terms of the Act.

During the appeal process, the person is protected. But if the rejection is confirmed, the person will be dealt with as an illegal foreigner in terms of the Immigration Act.

Section 34 of the Immigration Act gives immigration officers the right to arrest and deport illegal foreigners. 

The United Nations Refugee Agency (UNHCR) says that in that case, the only legal avenue left is to apply for a formal Judicial Review through the High Court. You would need to have lawyers for that.

You may find it helpful to ask one of the following organisations for advice:

• Lawyers for Human Rights

Email: [email protected]

Tel: Musina 015 534 2203

Durban: 031 301 0531

Pretoria: 012 320 2943

Johannesburg: 011 339 1960

Cape Town: 021 424 8561

• Legal Resources Centre

 Email:[email protected]

Johannesburg: 011 836 9831.

Cape Town: 021 481 3000.

Durban: 031 301 7572.

Wishing you the best,
Athalie