Scalabrini Centre for Cape Town and Lawyers for Human Rights notes the judgment handed down on Tuesday 12 May 2026 by the Constitutional Court of South Africa in Director-General, Department of Home Affairs and Others v Irankunda and Another.

A matter concerning whether an asylum seeker whose application has been finally rejected under the Refugees Act may later lodge a subsequent asylum application based on materially changed circumstances that make it unsafe for them to return home, including the emergence of a refugee sur place claim (a claim based on circumstance that only arise once you have left your country and are in a host country).

The Court clarified that the situation for asylum seekers in the asylum process remains the same that any new circumstances that have happened can and should be raised and taken into to consideration at whatever point the person is at in the asylum process. The court also confirmed that it was not deciding on if there should be a law that allows for people to re-apply for asylum if there are new circumstances or whether the absence of such provisions in the Refugees Act is constitutional, it just said that the law currently does not provide for re-application once finally rejected.

Hence at the heart of this matter was a critical protection question: whether South Africa’s asylum system remains capable of responding when a person’s circumstances, identity, profile, or country conditions materially change after an initial asylum claim has been finalised. Writing for the majority, Justice Kollapen framed the central issue before the Court as whether there exists a “clear right in the Act to submit a subsequent asylum application following the refusal of the first application.” The majority ultimately held that under the current Refugees Act, there is no clear statutory right to submit a subsequent asylum application following final rejection.

The Court further held that while South African law recognises first-time sur place claims, “there is a fundamental difference between first-time and subsequent claims”, and that how such subsequent claims should be regulated “falls within the realm of the country’s legislative branch.” This judgment has implications for refugee protection in South Africa, particularly for asylum seekers whose personal circumstances or the conditions in their countries of origin materially change after the finalisation of their initial claims.

Scalabrini Centre of Cape Town represented by LHR, participated in these proceedings as amicus curiae. In its submissions before the Court, the Scalabrini
advanced several critical arguments, including that:
– Modern conflicts are dynamic, volatile, and often materially change over time;
– Refugee sur place claims are recognised under international refugee law and South African jurisprudence;
– The principle of non-refoulement remains foundational to refugee protection and prohibits the return of individuals to countries where they face persecution, torture, or other serious harm;
– Where materially new facts or changed circumstances arise, asylum systems must remain responsive to lived realities and international protection obligations.

While the Constitutional Court has now clarified the statutory position under the current Refugees Act, the judgment raises serious questions about how protection systems respond when persecution evolves after an asylum claim has been concluded.

For Scalabrini Centre for Cape Town and LHR, refugee protection cannot be static in a world where conflict, repression, gender-based violence, and identity-based persecution continue to evolve. We remain concerned that where procedural finality is prioritised without an equally accessible protection mechanism for changed circumstances, some of the most vulnerable people may face renewed barriers to protection. 

We remain concerned that an overly restrictive interpretation of procedural access
may create protection gaps for individuals whose risk profile materially changes after an initial rejection, particularly where South Africa’s constitutional and international obligations under the principle of non-refoulement remain engaged.

In summary, the situation for asylum seekers currently in the asylum process remains unchanged, while for those who have been finally rejected and new circumstances arise making return unsafe, the law as is stands under the Refugees Act according to the Court does not provide for re-application for asylum. The Court did not decide on the lawfulness or constitutionality of the law not providing for subsequent application assessment as that was not a decision put before the Court.

Ends, 

For any inquiries, contact advocacy@scalabrini.org.za and/or mpho@lhr.org.za