South Africa Constitutional Court Rules Rejected Asylum Seekers Cannot Submit New Applications

The Constitutional Court of South Africa issued a judgment on 13 May 2026 that overturned a Supreme Court of Appeal ruling and found that people whose asylum applications have been rejected cannot submit new applications. The court determined that current legislation does not provide for repeat asylum applications. It did not direct Parliament to remedy the gap in the legislation.

Human rights organisations and leaders of immigrant communities in South Africa expressed disappointment with the Constitutional Court judgment of 13 May 2026. Dale McKinley, a representative of Kopanang Africa Against Xenophobia, said the decision could lead to deportations of people who fled danger.

"The main problem is that people who came as asylum seekers from countries where their lives were in danger may now be deported back to their countries because they're not allowed repeat applications ...

That is unacceptable," McKinley said. "It means people can be deported back to places where they risk being killed or imprisoned for what they did before they left. " James Chapman, a representative of the Scalabrini Centre, described the judgment as a muted response.

He said the court focused on whether existing legislation allows for subsequent asylum applications and what safeguards would follow final rejections. He added that the court found the law does not currently provide for repeat applications but did not say such provisions should be developed by the legislature.

New asylum applications are not accepted unless the applicant produces an asylum transit visa issued at a port of entry. The Scalabrini Centre challenged the transit visa requirement in the Constitutional Court. The transit visa case was heard by the Constitutional Court on 12 February 2026.

Rejected asylum seekers can appeal to the Standing Committee on Refugees or the high court. Chapman noted that if an asylum seeker is rejected, they have recourse to appeal that decision and should approach civil society organisations for advice and assistance with an appeal or review.

Chris Mapingure, director of Refugees and Migrants Rights Support Services and Chairperson of the Zimbabwe Migrants Support Network, said he was saddened by the ruling.

He advised those whose applications are rejected to engage their legal representatives quickly and file a review application in the high court. Ngqabutho Mabhena, a representative of the African Diaspora Forum, said he respected the judgment but noted that applications were often rejected because of the language barrier.

"We have members who failed to express themselves due to language barriers during interviews for Section 22 asylum documents," Mabhena said.

AllAfrica reported that McKinley described a broader trend in South Africa toward making it harder to apply for refugee and asylum seeker status. He said the Department of Home Affairs aims to resolve matters at the borders, where officials can refuse entry before people enter the country.

McKinley advised rejected asylum seekers to explore options such as applying for scarce skills visas, appealing to international agencies such as the United Nations Human Rights Council, or seeking refuge in other friendly countries.

The Constitutional Court of South Africa sits at Constitution Hill in Braamfontein, Johannesburg.