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Picture: 123RF/LUKAS GOJDA
Picture: 123RF/LUKAS GOJDA

In a landmark judgment, the Supreme Court of Appeal (SCA) found in favour of two asylum seekers from Burundi whose bids were refused by the department of home affairs.

The SCA set a new precedent for SA’s refugee law, particularly its international obligations when sending people back to countries where the situation has turned violent while they were out of the country.

The Burundi nationals sought asylum while in Cape Town. The department of home affairs refused their asylum bids and in 2014 ordered them to leave SA. However, they did not.

Burundi’s political landscape changed in 2015. According to Amnesty International: “Since April 2015, critics and opponents of President Pierre Nkurunziza have been targeted in a brutal and systematic repression by the Burundian authorities.”

The asylum seekers told the department they feared persecution if they returned to Burundi.

Due to the change in circumstance, the asylum seekers claimed they were now “sur place refugees”. According to the UN, “a person who was not a refugee when he left his country but who becomes a refugee at a later date is called a refugee ‘sur place’.”

New asylum bid

They made a new asylum bid based on the sur place claim. The department refused to hear them as the law doesn’t allow for refugees to make a second application while in SA if the first was rejected.

The asylum seekers challenged the department in the Cape Town high court. Though the high court agreed with home affairs, it noted that SA had an international obligation not to send foreigners back to countries where they face harm, known as “non-refoulement”. However, this had been considered by officials when they rejected the asylum seekers’ application in 2014. 

The asylum seekers appealed to the SCA, noting that though they may have faced no persecution when they first arrived, Burundi’s landscape had changed. They reiterated they were sur place refugees from 2015 and should not be sent back.

The SCA agreed, overturning the high court’s findings.

“It was not the high court’s place to determine whether the appellants’ sur place applications were genuine,” wrote SCA judge Tati Makgoka for a unanimous court. “That duty fell on the department.”

Makgoka noted “SA has not developed jurisprudence on sur place refugee claims”, and, using foreign law, explained how it must be considered in future.

The judgment sets a precedent for all courts and the department of home affairs when considering this new claim. For example, Makgoka said if the change in a refugee’s home country would affect all citizens, not the refugee specifically, a sur place refugee claim usually fails.

He ordered home affairs to hear their sur place claim.

Nabeelah Mia from Lawyers for Human Rights (LHR) said that due to the judgment “when decisionmakers determine an asylum claim, they should also consider the current situation in a country”.

According to LHR, 96% of asylum claims are rejected by officials, and the judgment will hopefully help change that.

Update: June 6 2024
This article has been updated with new information. 

moosat@businesslive.co.za

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