Can an Asylum Seeker Apply Again? Understanding Director-General of Home Affairs v Irankunda.

An asylum application may be rejected today, but conditions in the applicant’s country of origin can change tomorrow. A new government may take power, political violence may erupt, or the applicant may become personally exposed to persecution. Can that person submit another asylum application based on these new circumstances?

The Constitutional Court considered this difficult question in Director-General, Department of Home Affairs and Others v Irankunda and Another [2026] ZACC 18.

The background to the case

Amina Irankunda and Arava Niyonkuru, both Burundian nationals, applied for asylum after arriving in South Africa. Their applications were rejected as “manifestly unfounded”, and those decisions became final after being confirmed by the Standing Committee for Refugee Affairs.

Political conditions in Burundi subsequently deteriorated. In 2018, the applicants attempted to submit new asylum applications, arguing that the changed circumstances had made them refugees sur place.

A refugee sur place is someone who was not necessarily a refugee when leaving their country but later develops a well-founded fear of persecution because of events occurring after departure.

The Department of Home Affairs refused to accept the new applications, maintaining that the Refugees Act 130 of 1998 did not permit repeat applications once an earlier claim had been finally rejected.

The Supreme Court of Appeal’s decision

The Supreme Court of Appeal initially ruled in favour of the applicants. It held that a claim based on genuinely changed circumstances could not be dismissed merely because the person’s first asylum application had already been finalised.

The Court directed Home Affairs to accept and determine their new applications. However, that decision was taken on appeal to the Constitutional Court.

What did the Constitutional Court decide?

On 12 May 2026, the Constitutional Court’s majority overturned the Supreme Court of Appeal’s decision.

The majority held that the Refugees Act, in its present form, does not create a statutory right for a failed asylum seeker to lodge a second or subsequent asylum application after the first application has been finally rejected.

The Court reasoned that the Act does not provide a clear procedure for dealing with repeat applications. Allowing every later application to proceed through the same process as a first application could create an endless cycle of applications, appeals and reviews, preventing the asylum process from ever reaching finality.

Accordingly, a person cannot automatically restart the asylum process simply by presenting another application after an earlier claim has been finally determined.

A first-time sur place claim is different

The judgment draws an important distinction.

A person who has never applied for asylum and becomes a refugee only after leaving their country may still make a first asylum application based on sur place circumstances. That remains an ordinary first-time asylum claim.

The restriction identified in Irankunda concerns a person whose earlier asylum application was already rejected and finalised, and who then attempts to submit another application based on later developments.

In simple terms:

• A first asylum application based on sur place circumstances remains possible.

• A person whose original application was finally rejected has no automatic statutory right to submit another application.

• Merely repeating the same facts or arguments will not reopen a finalised case.

The minority’s concern

Two judges disagreed with the majority. They reasoned that preventing all subsequent applications could expose people to persecution where conditions in their countries had materially changed.

The minority emphasised the principle of non-refoulement, which generally prohibits returning a person to a country where they face persecution, torture or other serious harm. It also noted that the Refugees Act defines an “abusive application” as one made after a previous rejection without a substantial change in circumstances. In the minority’s view, this wording suggested that a further application supported by substantial new circumstances should be permitted.

Although this reasoning did not represent the Court’s binding decision, it highlights the unresolved tension between the finality of asylum decisions and South Africa’s obligation not to return people to serious danger.

What should an unsuccessful asylum seeker do?

A rejected applicant should not assume that submitting a new application will restart the process. The original decision must ordinarily be challenged through the appeal or judicial-review procedures available under the Refugees Act and administrative law.

An affected person should urgently:

• Obtain the rejection decision and written reasons.

• Determine whether an internal review or appeal remains available.

• Seek legal advice about reviewing the original decision in the High Court.

• Collect reliable evidence of any material change in personal circumstances or conditions in the country of origin.

• Raise any risk of persecution or serious harm before deportation occurs.

Deadlines in asylum and administrative-law matters can be strict. Waiting until arrest, detention or removal proceedings have begun may substantially limit the remedies available.

Conclusion

The answer after Irankunda is that a failed asylum seeker does not have an automatic right under the current Refugees Act to lodge a second application after the first has been finally rejected. A first-time sur place application remains possible, but a subsequent claim stands on a different legal footing.

The judgment makes early legal action essential. A refusal should be challenged through the correct appeal or review process before it becomes final. Where circumstances later change and returning home would create a genuine risk of persecution, specialised legal advice should be obtained immediately.

If your asylum application has been rejected or conditions in your country have materially changed, contact Ndou Attorneys Inc for assistance in assessing the legal remedies available to you.