World Refugee Day: A discussion on refugee protection and changed circumstances in asylum applications

In this episode, Elgene Lutshiti, in CDH’s Pro Bono & Human Rights practice, is joined by Monique Schoeman, Senior Attorney at the UCT Refugee Rights Unit, to reflect on refugee protection in South Africa.

The discussion considers the Constitutional Court’s decision in Director-General, Department of Home Affairs and Others v Irankunda and Another, a judgment dealing with further asylum applications based on new or changed circumstances, and what this means for access to protection in South Africa.

The conversation situates the judgment within the broader realities of refugee protection in South Africa and reflects on why access to fair asylum procedures remains so important.

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Transcript

Elgene Lutshiti: Hello everyone, and welcome to the CDH Conversations podcast. I'm Elgene Lutshiti, a Director in the pro bono and human rights practice at CDH. Today's episode marks World Refugee Day, which is observed each year on the 20th of June. It is an important opportunity to recognize the experiences of refugees around the world, to reflect on legal protections available to those fleeing persecution and conflict, and to consider the challenges that refugee protection systems continue to face.

In this episode, we are looking at refugee protection in South Africa through the lens of a recent constitutional court judgment that has generated significant discussion in refugee law circles.

South Africa has long been regarded as having a relatively progressive refugee protection framework. At the same time, anyone working in this space knows that the practical [00:01:00] realities are often far more complex. Questions around migration, asylum, documentation, border management, and state capacity remain firmly in the public spotlight.

Today's discussion focuses on the Constitutional Court's decision in Director-General, Department of Home Affairs and Others v Irankunda and Another, a case that considered whether a person whose asylum application has previously been refused may submit a subsequent asylum application where there are new or changed circumstances.

To help unpack the judgment and its broader significance, I'm joined by Monique Schoeman, senior attorney from the UCT Refugee Rights Unit, who represented the respondents in this matter. Monique, thank you so much for joining me.

Monique Schoeman: Hi. Thank you so much, Elgene, for having me. I appreciate you giving me this opportunity.

Elgene Lutshiti: Now, before we get into the legal issues, perhaps let's start with some background. Could you briefly explain the facts of the case and what was ultimately before the constitutional court?

Monique Schoeman: Yes. With regarding to this matter, the case was about two Burundian nationals who applied for asylum. The applications were initially rejected as manifestly unfounded, and they both received final rejection decisions in 2014, this was after the standing committee for refugees, REFIS, had decided to uphold the decision as manifestly by the RDSO. The first applicant was rejected on the basis that she came to study, and the second applicant on the basis that she came to look for her husband, which was not entirely true and not the case.

They both suffered forms of persecution when they left the countries, and this was not considered during the application. These clients had every right during the time to challenge these decisions on judicial review. But in general, not everyone knows about this option, or those who do know about the right to take the matter on judicial review knows that you have to pay a lawyer, and not everyone has the money to pay for a lawyer, and therefore does not go for that option.

Anywhere around about April 2015, there were political unrest and tension that started in Burundi, which escalated over time. It affected several people who were politically affiliated and those who were not involved in any political party. The growing fear of tension, which later evolved to people being abducted, kidnapped, killed, detained, and females being subjected to rape and torture. All of these things were happening after April 2015, and it was escalating as the years passed.

Our office received several individuals who were finally rejected, and due to the growing tension, these people knew they were not able to return. This then brought us to make the decision that something needs to be done.

We, we have to bring this to the department's attention to decide as to what they are going to do with these individuals who are not able to return back.

Elgene Lutshiti: Thank you, Monique. One of the concepts that features prominently throughout the judgment is that of refugee surplus. It's not a term that many people outside refugee law would be familiar with. Could you explain what a refugee surplus is and why that concept became so important in this case?

Monique Schoeman: A surplus refugee is someone who had left the country, and for some other reason, while being outside of the country of origin, a change of circumstances happened in the country whereby [00:05:00] the individual is unable to return back to the country due to safety concerns It was important for our case as we knew that there were safety concerns for these individuals that were not able to return and that they needed protection. And this is why we used surplus as one of the forms in the instance of this matter.

Elgene Lutshiti: One thing I found interesting about the judgment is that it wasn't really a debate about whether refugees deserve protection. At the heart of the case were two very different ways of looking at the Refugees Act. The department argued that once an asylum application has been finally rejected, the Refugees Act doesn't create a mechanism for starting the process again, even if new circumstances arise later.

It also raised concerns about maintaining finality in the asylum system and preventing an endless cycle of applications. Your clients took a different view, and their case was built largely around the principle of non-refoulement and the reality that circumstances can change dramatically after an asylum application has been decided, as you've discussed earlier regarding what has happened in Burundi.

Now, for listeners who may not be familiar with the term, what does non-refoulement mean, and why did it support your argument that a person should be able to seek protection again if new risks arise after the original claim has been rejected?

Monique Schoeman: Non-refoulement is a foundational principle in international and refugee law.

The principle, in essence, is a form of a prohibition, meaning that an individual cannot be returned to the place of origin if this individual is going to be subjected to persecution or physical harm. The reason why we use the principle is because the principle is absolute when it comes to refugee protection, and the form of protection can only be lifted if the individual is a danger to the host country.

Only then can the host country be discharged from the obligation and duty in terms of international law and obligations. As South Africa is a state party to several international legal instruments, and specifically the convention relating to status of refugee, it has an obligation to protect refugees from returning.

So yes, from the judgment, there is no indication that they should not be protected. The concern was that there was no indication as to how does such protection look like and how on the ground level it will be implemented by the Department of Home Affairs.

Elgene Lutshiti: Thank you, Monique. That then brings us to the Constitutional Court's reasoning in the matter.

What struck me reading the majority [00:08:00] judgment was that Justice Kollapen repeatedly emphasized that the case was not really about whether subsequent applications should be allowed as a matter of policy. Rather, the question was whether the Refugees Act properly interpreted currently creates such a right.

The court was at pains to say that there may well be good reasons for recognizing subsequent applications, and that many jurisdictions do recognize them, but that the issue before the court was ultimately one of statutory interpretation rather than refugee policy. Would that be a fair characterization of the majority's approach?

Monique Schoeman: What was vague from the Refugees Act was whether an individual was able to make more than one application. So to find the correct interpretation, the court would have been best placed and suited to clarify. I believe the court took the departure from the SCA decision, looking at comparative international jurisprudence.

The international jurisprudence, which firstly in this situation does acknowledge the right to subsequent and fresh application, and secondly, the manner in which these applications are dealt with in terms of legislation or special rules that were made I believe that the court wanted to remain consistent with international jurisprudence and not wanting to deviate, as this is the reason why they came to such a decision.

I do not think it is fair, as it left a few potential clients who are genuine claims for subsequent applications still hanging and in limbo.

Elgene Lutshiti: So a central feature of the judgment was the distinction the court drew between a first-time surplus claim and a subsequent application. The majority accepted that surplus refugees are recognized under international and South African refugee law, as you've mentioned, Monique, about the court looking to international jurisprudence, and the court held that subsequent applications raised different concerns about finality, procedure, and the administration of the asylum system.

So why was that distinction so important to the court's reasoning?

Monique Schoeman: Elgene and the court in the judgment acknowledged the similarities between a new applicant and a surplus applicant. They share the same premises of persecution. However, the new applicants suffer persecution while being in their country of origin, and the surplus refugee while being outside of the country.

Those are recognized by international and South African law. As for the subsequent applications, I believe that any reapplication raises concerns which may be valid for any host country. I think the abuse of the system is the main concern. That also needs to be taken into considering that there are people who are genuinely unable to return.

These applications for subsequent could be expedited to bring finality. I can think of an example as to why these applications would not carry any burden on the administrative system. A refugee can apply for certification as a refugee indefinitely in terms of Section 27C of the Refugees Act to the Standing Committee for Refugees Affairs, with the aim to apply for permanent residence once they are granted certification indefinitely.

If they apply for the first time and the standing committee decides that they're not going to grant the refugee certification or grant the refugee status indefinitely, but is rather advised to continue with their refugee status, such an individual will not be deterred from making another application.

If such an application is filed again with the Standing Committee for Refugee Affairs, the standing committee has to assess this application, and the assessment that is done, the standing committee in this instance can expedite such an application up until it comes to finality and decide whether it is coming to the same outcome or whether it is coming to a different outcome.

But yet, it's an application that the Standing Committee will have to assess. They, unfortunately, in this situation, won't be able to deny the person from reapplying. Bringing it back to subsequent application, should the process be expedited or fast-tracked, it could provide protection for those who are in need, and therefore, South Africa meets its international and refugee law obligation, which is to protect those who are in definite need of protection.

Elgene Lutshiti: Thank you, Monique. I think that point is quite insightful. And then that brings us to the minority judgment, right? This was a very complex judgment and legal matter before the court, and the minority judgment, on the other hand, approached this case really differently. They placed greater emphasis on the principle of non-refoulement and appeared to view the definition of abuse of application in the Refugees Act as indicating that the legislation already contemplates repeat application in certain circumstances, and you've just given us an example of a circumstance where repeat application can occur.

What do you see as the most significant points of departure between the majority and minority judgments?

Monique Schoeman: Elgene in both judgments, the minority and majority emphasize the concerns of the abuse of applications and the repeat of these applications not coming to a finality. In [00:14:00] my view, this could be the same view of asylum seekers who comes to apply for asylum.

Not all asylum seekers are genuine refugees, but these applications have to be assessed and to ensure who are deserving of protection and who are deserving are getting protection to the fullest. The majority took a very narrow view, which is quite strict to the law, and for that, those who apply first time or surplus applications go through the asylum process, and if rejected, they exhaust the option of internal appeals and reviews and potentially judicial review.

The majority saw that they are the ones who are protected by the principle of non-refoulement. The majority further said that a failed asylum seeker does not pursue the judicial review. They are no longer shielded by the principle of non-refoulement. The minority took a [00:15:00] more practical and humanitarian view by agreeing that these people are not able to return because they need the protection.

If one looks at how the minority and the majority looks at these cases, it is rather subsequent applications are not in law. And then the main concern whether there is the system which will be overburdened, which is what the majority has indicated, versus the minority having to actually look at the individual harm that will suffer from the individual should they be returned back and this is why it's so important that the principle of non-refoulement is there to ensure that the person gets the protection that they need, and this is why we decided on this principle being very important and useful when we took the matter on.

When we look at applications right now, having to look at the asylum process for the [00:16:00] past six or seven years, there has been fewer applications that has been submitted to the Department of Home Affairs, and therefore, I believe that the system will not be overburdened in instances where there is subsequent applications that are going to be made.

Elgene Lutshiti: Monique, do you think the judgment resolves the legal position fully, or does it leave space for legislative reform or future constitutional debate?

Monique Schoeman: Elgene I do not think that the judgment resolves the legal position fully. In future, there may be space for legislative reform In my opinion, civil wars comes and go, and people who are in position where they have received a final rejection but have no recourse for judicial review may be in a position where they are not able to return back to their country of origin.

And until there is a proper process in place for protection, there is always room for litigation. I need to emphasize and highlight with regarding to the Irankunda matter, there's a lot of perception and issues and problems as to who is affected and who is not affected. I need to highlight the people who are not affected.

People who are newcomers who still needs to apply for asylum, they are not affected by the Irankunda matter. Those in the asylum process who has either expired documents and needs to go through the process to be able to get back into the system, they are still not affected. People who has been rejected as either manifestly unfounded or unfounded has the right to appeal or has the right to write representations to the standing committee for them to reconsider.

These are clients and applicants who have not been affected. And again, even if your case is finalized, it still gives you room to be able to take your matter on judicial review. So only once you take the stance of not taking the matter on judicial review or where there is no form of space to either legally or substantively where you can take the matter on judicial review, then this is the individuals who will be affected by Irankunda and not be able to resubmit applications. That's only for the time being now.

Elgene Lutshiti: Now, as we record this podcast in the lead-up to World Refugee Day, I think it's important to remember that behind cases like this are real people whose lives are affected by these legal questions. The judgment deals with statutory interpretation, but it also touches on broader themes of protection, documentation, and access to legal processes.

From your perspective, what does this case tell us about the realities facing refugees and asylum seekers in South Africa today?

Monique Schoeman: Elgene, people in the asylum process currently feels very discouraged due to the fact that every turn taken in the process, it feels the heat of the ball, and they are in this challenge to succeed.

An example I can say, currently challenges are the delayed renewal of permits, which has a ripple effect on people's lives, and the crisis of new asylum seeker applications not being processed. They need to know that they are not alone in these struggles, and that this is only for a temporary period.

Engaging with the Department of Home Affairs directly and in stakeholders meetings, dealing with issues is what we as legal partners do and other NGOs in order to address- issues and matters with the department amicably. There is obviously certain instances where we have no option, and this is only as a last resort, which is to approach the court.

Also, it needs to be note that there has been many success cases where the courts have uphold the Constitution and the values to protect asylum seekers and refugees. There's a lot of advocacy work that is being done in terms of frontline workers and organizations. Training of community leaders and training specifically of law clinics nationally has been done so that the assistance and protection is broader for asylum seekers and refugees throughout the country.

Magistrates and police have also been trained so they know how to deal with instances and what refugees' rights are and how it needs to be protected.

Elgene Lutshiti: Thank you, Monique. Before we wrap up, I'd like to end with a broader reflection. World Refugee Day is ultimately about people, people who have been [00:21:00] displaced, people seeking safety, and people trying to rebuild their lives.

If there's one message you would like listeners to take away from this conversation, what would it be?

Monique Schoeman: Working together can definitely create some light within the dark situation that where refugees and asylum seekers find themselves currently in South Africa. There are many refugees who have successfully built their lives and eventually integrated.

Some have become permanent residents, others have become citizens. So this is only temporary. South Africa has seen cases where there has been violence, and refugees and asylum seekers are used as a scapegoat for a number of failures on the government's part. They must just continue to look for the assistance that is provided with the different law clinics, legal partners, as whether there is human rights organizations that they can get assistance from. The assistance is there. This is to ensure that refugee protection is always guaranteed.

Elgene Lutshiti: Monique, thank you very much for joining me and for sharing your insights today and for your courage in the work that you do. I know working in this space is not very easy.

I want to thank everyone for listening, and whether you are a legal practitioner, a student, someone working in the migration sector, or simply interested in understanding these issues better, I hope today's conversation has provided some useful context on the Constitutional Court's decision and its broader implications.

As we mark World Refugee Day, it is worth remembering that refugee law sits at the intersection of law, policy, and human dignity. Cases like this remind us that difficult legal questions often involve deeply human realities, and that maintaining both the integrity of our institutions and the protection of fundamental rights remains an ongoing challenge.

Thank you for listening, and until next time, goodbye.

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