Foreign nationals whose applications for asylum in South Africa were rejected do not automatically have the right in law to reapply.
If they do, this will allow for a never-ending cycle of asylum applications, according to a judgment by the Western Cape High Court.cf
This followed an application by three Burundian nationals who applied for asylum in South Africa.
Their applications were rejected as being manifestly unfounded in terms of the Refugees Act.
The refusal was automatically reviewed by the Standing Committee for Refugee Affairs, which confirmed the finding.
The women subsequently turned to court to obtain an order directing Home Affairs and its various arms dealing with asylum issues, to accept a second asylum seeker application made by each of them.
Their main objective to remain in South Africa was because they wanted to study and work here, while one of the women said she came here “to find her husband”.
According to them, the act makes provision for foreign nationals to reapply for refugee status after their first application has been turned down
Each of them earlier applied for asylum status in South Africa, but their applications were turned down, as their reasons for wanting to stay in South Africa were said to be unfounded.
In terms of the Refugee Act, a person qualifies for refugee status if it is proven that their lives would be in danger if they were to be sent back to their country of origin.
But in this case, home affairs officials noted that peaceful elections were held in Burundi in 2020 and many Burundian refugees had voluntarily returned home, so the women were not in danger if they went back.
The women accepted the rejection of their first asylum applications and did not take it on review. But they said that they were entitled, in terms of the law, to reapply.
Judge Hayley Slingers said the women were told to leave the country when their asylum applications were turned down in 2014, yet they chose to remain illegally in the country.
They now wanted the court to force Home Affairs to accept their second application.
They want to base the second application on allegations that their lives would indeed be in danger if they were forced to return to Burundi due to the government there.
According to them, the act is “an open system designed for vulnerable people to apply for asylum”.
They also argued that their interpretation of the act is that it does not matter how any times someone applied for asylum status after being refused, and that while the application is pending, they may not be kicked out of the country.
But Judge Slingers said this interpretation is problematic, as it would mean an asylum seeker could keep on submitting applications if the previous ones were refused, while remaining in South Africa all the time.
“There would then be no need to be granted asylum as the asylum seeker need only continuously apply for asylum, to be granted the right to stay in the RSA.”
The judge turned down their application and said the act did not automatically give asylum seekers the right to reapply.
She said when their asylum applications were refused and this was confirmed by the committee, they reverted to the status of being illegally in the country.