Scalabrini Centre of Cape Town (SCCT) as amicus curiae (Friend of the Court) is being represented by Lawyers for Human Rights (LHR) today at the Supreme Court of Appeal in Bloemfontein in the case of A.I. & Others v Director of Asylum Seekers Management: Department of Home Affairs & 4 others.

The main issue in this matter is whether a person can make another application for asylum under the Refugees Act 130 of 1998 after their previous applications were rejected.

The appellants are two Burundian nationals whose initial applications for asylum were rejected. They argue that they are entitled to lodge a subsequent application and bring forward information that would show that they have refugee sur place claims. They are appealing a decision of the Western Cape High Court held that an asylum seeker has no clear right to resubmit an application for refugee status after it has been refused.

The appellants argue that the right to non-refoulement allows them the right to make subsequent applications. The right to non-refoulement – an essential protection under international human rights law – prevents states from returning someone to their country of origin when there are substantial grounds to believe that this person would be at risk of harm upon their return, including persecution, torture, ill-treatment or other serious human rights violations.

The SCCT seeks to assist the Court by arguing that the complexity and ever-changing nature of conflict in war-ridden countries means that an asylum system must be complex, dynamic and agile. This, coupled with the fact that the principle of non-refoulement is absolute and unconditional and so a person cannot be sent back to a country where they may risk persecution and harm means that an asylum seeker must be entitled to make a subsequent application for asylum.