Amina Irankunda and Another v Director of Asylum Seeker Management: Department of Home Affairs and Others

Two Burundian nationals (the appellants) entered South Africa illegally in 2008 and 2009 and applied for asylum in 2009, stating they wished to work and study. Their applications were rejected by the Refugee Status Determination Officer (RSDO) as manifestly unfounded under s 24(3)(b) of the Refugees Act 130 of 1998. The Standing Committee for Refugee Affairs confirmed these rejections in 2014, after which they were notified they were illegal foreigners and had to leave within 30 days. The appellants neither left nor appealed. In August 2018, over four years later, their attorney wrote to the Department of Home Affairs asserting that political violence had erupted in Burundi in 2015 following President Nkurunziza's announcement of a third term bid, making return unsafe. They claimed to be sur place refugees and sought to submit fresh asylum applications without leaving South Africa. The Department refused to accept new applications unless they returned to Burundi first. The appellants approached the Western Cape High Court seeking an order compelling the Department to accept their sur place refugee claims.

• Whether an asylum seeker whose initial application has been declined is entitled to submit subsequent applications for asylum
• Under what circumstances subsequent asylum applications may be submitted
• What factors must be considered when evaluating subsequent asylum applications
• The nature and legal basis of sur place refugee claims
• Whether failed asylum seekers must leave South Africa before submitting fresh applications
• The application and scope of the principle of non-refoulement
• Whether requiring failed asylum seekers to return to their country of origin to make fresh applications violates the principle of non-refoulement

The appeal was upheld with costs. Paragraphs (iv) and (v) of the high court's order were set aside and replaced with an order directing the first and second respondents to: (1) accept the applicants' sur place refugee claims applications within five working days of the order; and (2) determine such applications within 21 working days thereafter. The first and second respondents were ordered to pay the costs of the application, jointly and severally.

The binding legal principles established are: (1) A person whose asylum application has been finally rejected may submit subsequent applications if based on substantially different or changed circumstances, but not merely on reformulated claims already determined. (2) Sur place refugee claims arise when supervening events in the country of origin, or consequences of the applicant's actions while abroad, create a well-founded fear of persecution that did not exist when they left their country. (3) The principle of non-refoulement under s 2 of the Refugees Act endures until asylum processes are exhausted and a final determination is made, but is not absolute and does not prevent return after lawful final rejection unless new circumstances arise. (4) The Department of Home Affairs is obliged to consider and determine sur place refugee claims on their merits and cannot: (a) summarily reject them solely because a previous application was finally determined, or (b) require applicants to return to their country of origin before submitting such claims. (5) A valid sur place claim must set out a proper evidential basis showing what circumstances have changed, evidence of that change, and specific consequences for the applicant; absent this content, an application may be summarily rejected. (6) In evaluating sur place claims, decision-makers must consider whether: (a) there has been a deterioration in circumstances in the country of origin since departure and whether it persists; (b) the applicant has a well-founded fear of persecution based on UN Convention grounds (race, religion, nationality, political opinion, membership of particular social group) or OAU Convention grounds (external aggression, occupation, foreign domination, events seriously disturbing public order); (c) the risk is personalized to the applicant rather than generalized across the population.

The court made several non-binding observations: (1) There is much scope for abuse of sur place claims to extend protections for lengthy periods without proper foundation, which should not be tolerated. The Department should develop expedited procedures to bring to finality sur place claims that facially have no basis. (2) Drawing on UK jurisprudence (Danian), even where a refugee sur place has acted in bad faith, this should not alone exclude them from Convention protection if their fear of persecution is genuine and well-founded for a Convention reason and there is real risk of persecution. However, credibility is likely to be low and claims must be rigorously scrutinized. (3) Drawing on Canadian jurisprudence, there is no 'good faith' requirement in making a sur place claim, but lack of good faith affects credibility assessment. (4) Where a country is in civil war, it is not enough to show risk upon return; the applicant must show fear of persecution for Convention reasons over and above ordinary risks of warfare. (5) Where risk is faced equally by all citizens or a significant subset of the population, this indicates generalized rather than personalized risk. (6) Evidence of changed government circumstances must be subjected to detailed analysis to determine whether changes are significant enough to eliminate fear of persecution, considering quality of democratic institutions and impact on the particular claimant's situation. (7) The court noted the appellants' unexplained four-year delay in making sur place claims and change in their account of reasons for leaving Burundi, which would be relevant to credibility assessment. (8) The court emphasized that State authorities must maintain and promote constitutional values and international human rights standards when dealing with asylum applications.

This is the first Supreme Court of Appeal case to directly address sur place refugee claims in South African law. The judgment establishes the legal framework for subsequent asylum applications based on changed circumstances in the applicant's country of origin or consequences of their actions while in South Africa. It clarifies the scope and limits of the principle of non-refoulement, confirming it is not absolute but endures until all remedies are exhausted. The case provides important guidance drawn from international law (the UN Convention and OAU Convention) and comparative jurisprudence (UK and Canada) on evaluating sur place claims, including considerations of bad faith, generalized versus personalized risk, political upheaval, and changed government circumstances. It affirms that the Department cannot summarily refuse to consider subsequent applications that assert a facially different basis from rejected applications, and cannot require failed asylum seekers to return to their country of origin to make sur place claims. The judgment balances refugee protection with legitimate state interests in preventing abuse of the asylum system, emphasizing the need for proper evidentiary foundations and expedited procedures for unfounded claims.