The Principle of Sur Place under South African Refugee Law: Irankunda v Director of Asylum Seeker Management: Department of Home Affairs

Abstract

Abstract

The case of Irankunda and Another v Director of Asylum Seeker Management and Others 2024 (6) SA 376 (SCA) (5 June 2024) marked the first time in which a sur place claim was directly asserted before the Supreme Court of Appeal (SCA). For the first time, the SCA decided an asylum claim directly on sur place refugee claims, the notion that a person who was not a refugee upon leaving their country of origin may become one because circumstances change after they depart. The court’s recognition of refugee sur place is significant because South African law had not previously developed jurisprudence on sur place asylum claims, making the Irankunda judgment a watershed decision in the development of refugee law. This note illustrates how the Irankunda decision goes beyond elucidating the procedural question of whether an asylum seeker may apply for asylum subsequent to an initial denial of the application. The decision provides the nexus between sur place claims and another key international human rights principle, the non-refoulement principle entrenched in section 2 of the Refugees Act 130 of 1998. This paper argues that the Irankunda decision advances a human rights-compliant approach in its guidelines for the adjudication of sur place refugee claims that is responsive to different forms of persecution, including those generated by events taking place post-departure, such as civil conflict and egregious human rights violations.