Rejected asylum seekers cannot automatically reapply for protection, Kubayi says

Asylum seekers whose applications have been finally rejected cannot simply restart the process to regain legal protection in South Africa, Justice and Constitutional Development Minister Mmamoloko Kubayi has clarified.

Speaking during a media briefing in Pretoria, Kubayi explained the government’s position following a Constitutional Court ruling on the country’s asylum system.

She said a person whose asylum claim has been finally rejected does not automatically regain protection under the law by declaring an intention to apply for asylum again.

“The position of a person whose asylum claim has been finally rejected is different, he or she has no right under the act to make a subsequent application and does not reactivate the protection of section 2 by declaring an intention again,” Kubayi said.

The clarification comes as government works to address repeated asylum applications while ensuring that immigration decisions comply with legislation and court rulings.

What happens when an asylum application is rejected?

South Africa’s asylum system provides a process through which people seeking protection can have their claims assessed under the country’s refugee laws.

However, Kubayi said applicants whose claims have reached final rejection cannot automatically reopen the process simply by expressing an intention to submit another application.

The distinction is important for immigration officials dealing with people whose previous applications have already been concluded. Authorities must be able to identify rejected claims while applying the law to each person’s circumstances.

The government’s position is that a fresh declaration of intent does not, by itself, restore the legal protection associated with an asylum claim.

This does not mean that every possible new claim can be disregarded. Kubayi acknowledged that circumstances may change after an application has been rejected, potentially creating new risks for the person concerned.

New claims involving persecution may need legal review

One of the key issues raised during the briefing was what should happen if a rejected asylum seeker later faces a genuine risk of persecution or serious harm if removed from South Africa.

Kubayi said the Constitutional Court had left open the question of whether the Refugees Act adequately provides for genuinely new claims arising after a final rejection.

“The court expressly left open whether the act is under-inclusive in making no provision for a genuinely new claim arising after final rejection,” she said.

She added that a specific new claim involving possible persecution or serious harm should be referred for legal advice before removal.

“Until that question is resolved, a specific and new claim that removal would expose such a person to persecution or serious harm should be referred for legal advice before removal.”

This creates an important distinction between attempting to revive a rejected application without a new basis and raising specific circumstances that could expose someone to serious danger.

For affected individuals, the nature of the new claim and the legal assessment of their circumstances may therefore be significant. The minister’s remarks do not establish an automatic right to submit another application, but they recognise that potential risks associated with removal may require further legal consideration.

Government plans to flag previously rejected applicants

Kubayi also said the government intends to flag asylum applicants whose claims have been finally rejected as part of efforts to prevent abuse of the system.

The measure is intended to help authorities identify previous decisions and distinguish those cases from situations involving genuinely new protection concerns.

The government maintains that immigration enforcement, including deportations for other immigration violations, will continue in accordance with the applicable legal requirements.

The challenge for authorities is to administer the system efficiently without overlooking cases in which new information could have legal implications.

Repeated applications can complicate the processing of asylum claims, while unresolved questions about new risks require careful consideration under the law.

Home Affairs develops a biometric system

Alongside the legal questions, the government is pursuing technological changes aimed at improving the administration of asylum applications.

The Department of Home Affairs is developing a biometric online platform intended to verify applicants’ identities, identify previously rejected claims and speed up the processing of applications.

The proposed system forms part of broader efforts to improve the management of asylum cases and strengthen immigration controls.

Biometric verification could help officials establish whether an applicant has previously been registered or had a claim rejected, although the system’s practical impact will depend on its implementation and how the information is used.

The technology is intended to support more efficient processing, rather than replace the legal assessment required when individual protection claims are considered.

What the clarification means for asylum seekers

Kubayi’s statement reinforces the government’s position that a finally rejected asylum application cannot simply be reactivated through a new declaration of intent.

At the same time, her remarks recognise that a genuinely new claim involving persecution or serious harm raises a separate legal question that may need to be assessed before removal.

The issue sits at the intersection of immigration enforcement, the administration of refugee claims and the legal protections available to people who may face danger if returned to another country.

As government continues to implement the Constitutional Court’s ruling and develop its proposed biometric platform, the handling of new claims following final rejection remains an important part of the wider asylum policy debate.

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Source: IOL