In Pursuit of Equality in South Africa

South Africa’s Obligation Towards Protecting Unaccompanied and Separated Foreign Children

ELGENE ROOS

INTRODUCTION

‘Usually more than half of any refugee population are children. Refugee children are children first and foremost, and as children, they need special attention.’1 Refugee children are part of the most vulnerable group of people in the world and prone to suffer more prejudice than any other. ‘In the aftermath of emergencies and in the search for solutions, the separation of families and familiar structures continue to adversely affect refugee children of all ages. Thus, helping refugee children to meet their physical and social needs often means providing support to their families and communities.’2 By signing treaties such as the UN Convention on the Rights of the Child (CRC) and the African Convention on the Rights and Welfare of the Child (which will be discussed below), South Africa has bound itself to put in place supportive and protective mechanisms to ensure the protection of the children forced into these vulnerable situations.

Among refugee children, unaccompanied and separated children require particular attention among other vulnerable children because of their particular need. The Refugees Act No. 130 of 1998 (Refugees Act) was promulgated to give effect to international legal instruments, principles and standards relating to refugees. However, the Refugees Act does not specifically define who an unaccompanied or separated child is. Internationally, one of the definitions ascribed to an unaccompanied child is a person who has been separated from both parents and who is not being cared for by an adult who, by law or custom, is responsible to do so. A separated minor refers to a child who is accompanied by an adult relative other than a parent, legal guardian or customary care giver3.

When a child arrives in a country with both his or her parents, or in some instances only with one parent, generally the child will be conferred with the parent’s status. However, when the child is with an uncle, cousin or any other relative, a State has the discretion to not consider these relatives to be a ‘family’ member and might therefore require each person, including the child, to make an individual claim4. A minor who has been abandoned or separated from his or her parents and who appears to qualify for refugee status and is a child in need of care, must be brought before the Children’s Court5.

For the purpose of this article, a child is a person under the age of eighteen, as described in section 28(3) of the Constitution of South Africa.

This article will look at the international and domestic legislative framework which governs unaccompanied and separated minors in South Africa. It further examines the challenges unaccompanied and separated refugee children are faced with when entering and legally remaining in South Africa. Two challenges will be discussed: first, the difficulty in obtaining valid documentation which legalises their stay in the country and second, statelessness (or risk thereof) and how it infringes on their right to identity.

WHY FOCUS ON UNACCOMPANIED MINORS AND SEPARATED CHILDREN?

By signing international conventions and enacting domestic legislation to protect the rights of children, South Africa has committed itself to treat all children equally, regardless of their nationality.

Furthermore, where parents and guardians have failed to protect children the State is obligated to take over that role and ensure that the best interest of the child is always taken into account. Failure by the State to afford children in vulnerable situations this protection leaves them open and vulnerable to dangerous situations and abuse.

ANALYSIS OF INTERNATIONAL AND DOMESTIC LEGISLATIVE FRAMEWORK

a) International legislative framework

In its efforts to protect children, regardless of their nationality and documentation status, South Africa has become signatory to various international conventions to ensure that children are always protected. One such convention is the CRC. ‘The right of children to seek asylum and be assisted when applying for asylum is set out clearly in the CRC.’ 6Article 22 provides that:

‘State Parties should take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with the applicable law shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights in the present Convention and in other international human rights or humanitarian instruments to which the States are Parties.’

It goes further and provides that efforts should be made to trace the family of the child and if such attempts fail, it is up to the State to provide the child with the necessary protection.

South Africa is also a signatory to the African Convention on the Rights and Welfare of the Child (ACRWC). This treaty functions as a guideline for African countries on how to ensure that every child is afforded the necessary protection and is able to access their rights. ‘The migrant child should be accorded the same protection as any other child who is permanently or temporarily deprived of their family environment.’

To adhere to its international obligations, South Africa has incorporated these treaties into its national law. But on a practical level the systems put in place to afford children the necessary protection, which is found in South Africa’s domestic law, sometimes fail children as the processes needed to be followed can sometimes take years.

b) Domestic legislative framework

The South African Constitution7 (Constitution) provides that all children in South Africa have the right to family, or to appropriate alternative care when removed from their family environment. Practically, the Children’s Act applies equally to all children in South Africa. There is no distinction between local and foreign children because child protection should be approached in the same manner for all children.

The Refugees Act8 provides limited guidance on the specific procedures involved and what the responsibilities of all the role players are in assisting unaccompanied foreign children to make asylum applications9. In South Africa, a minor child who enters the country with a parent would qualify for asylum in terms of section 3(c) of the Refugees Act10. The Refugees Act defines a ‘dependant’ to include the unmarried, dependant child of the asylum applicant11. This provision has previously not been interpreted to include separated children. The strict interpretation of ‘dependant’ has resulted in litigation. In a recent case12 brought before the North Gauteng High Court (Mubake case), the court ruled that the definition of ‘dependant’ should be interpreted to include children who have been separated from their parents and who are currently in the care of a relative. The Court further ordered the respondents to inform all Refugee Reception offices to issue the relevant permits to separated children as dependants of their care givers.

Section 32 of the Refugees Act provides for unaccompanied children in South Africa. It provides that an unaccompanied minor, who appears to have a claim for refugee status, must be brought before the Children’s Court.

The Children’s Court may make an order which provides for the protection, care and financial assistance to the child. It is important to note that a court order from the Children’s Court does not guarantee refugee status, as the Department of Home Affairs still has the discretion to grant asylum to the child or not.

The process of bringing a child before the Children’s Court in order for the child to become documented is riddled with problems, with the biggest problem being the time that it takes for the Court to finalise each child’s matter. This matter was discussed in the Mubake case13. Before a child can be joined as a dependant of an existing refugee or asylum seeker, an investigation must be conducted by the Department of Social Development. The Applicants argued that the first step to be taken prior to the investigation should be to document the child and issue the child with a permit to legalise their stay in the country. The Respondents were of the view that the Children’s Court processes should take place prior to the issue of such permit. The Court held that the risk of not documenting a child is greater than the risks associated with documenting separated children as ‘dependants’ without any investigation. The Court further held that granting a child a temporary permit has the advantage of legalising and regulating their stay in the country and that the investigation conducted by the Department of Social Development can be considered before a permanent permit is being considered. ‘In other words, there is no reason why the processes of immigration status and that of the interests of the child in the Children’s Court cannot run parallel. One does not have to exclude the other.’14

c) Analysis of legislative framework

Despite South Africa incorporating international law domestically, the bureaucratic process of documenting a minor who is separated or unaccompanied can become a hurdle instead of an enabling mechanism to afford children the necessary protection. As expressed above, children can sometimes remain undocumented for long periods of time because of the processes that must be followed, thus denying them their constitutional rights and access to basic services.

In the CRC committee’s 2016 concluding observations on the second periodic report of South Africa15, the committee expressed concern that access to social security benefits are hampered by administrative barriers and that these barriers need to be removed to afford these children with the necessary protection.

The current legislative framework fails to adequately provide separated and unaccompanied children with a stable, quick and durable solution. The legislation further fails to practically equip all the relevant stakeholders with the necessary capacity to deal with separated and unaccompanied minors in order to adhere to the best interest of the child principle entrenched in the Constitution. Children in this vulnerable situation will continue to be at risk of destitution, exploitation, violence and abuse.

THE CHALLENGES FACED BY UNACCOMPANIED AND SEPARATED MINORS

The consequences of a minor not being documented are far reaching. The child will inevitably face difficulty in accessing his or her rights to basic health care services, education and a range of other rights guaranteed in the Bill of Rights16. Given the fact that there is no detailed legislation or regulations on the issue, unaccompanied and separated minors are faced with serious problems regarding proper documentation to regularise their stay in South African and further they are faced with the dangerous reality of becoming stateless.

a) Documentation Options

i) Refugee Status

‘The 1951 Convention and 1967 Protocol relating to the Status of Refugees define a refugee regardless of age, and make no special provision for the status of refugee children.’17 The Refugees Act18 also does not make special provision for determining the status of a minor. Documentation is an important element of protecting children within South Africa’s borders. The type of documentation a child will be conferred with will depend on his or her situation (i.e. accompanied, unaccompanied and/or separated), and the status of the care giver will be highly relevant.

As part of the Children’s Court inquiry, a social worker may conduct an age assessment so as to ensure that the child is under eighteen years and thus qualifies for protection under the Children’s Act. The age assessment can be a form of identification for the child, but it does not legalise the child’s stay in the country. If a child appears to have an asylum claim, the Children’s Court may make an order that the child is a child in need of care.

For the child to be conferred with status, the status of the care giver will be the determining factor. If the care giver is not a parent, the relationship must be confirmed by the Children’s Court.

‘It is important that refugees have documentation enabling them to establish their identity. The necessity of providing all refugees with such documentation is recognized in Article 27 of the 1951 United Nations Convention relating to the Status of Refugees.’19 A result of not receiving proper documentation, as mentioned before, the refugee child is left exposed to the reality of staying in the country illegally and in most instances their right to basic services, which they are entitled to in terms of the Constitution, is denied.

b) Statelessness

The rights of stateless persons are established in two international conventions: the 1954 Convention relating to the Status of Stateless Persons, which establishes basic rights; and the 1961 Convention on the Reduction of Statelessness, which looks to prevent statelessness. A ‘stateless person’ is someone who is not considered a national by any State under the operation of its law20. ‘A stateless child lacks the guaranteed protection of any state. His or her basic rights, legal status, security in the country of residence and travel outside that country are subject to state discretion.’21

South Africa has not signed or ratified either of the conventions on statelessness and is therefore not automatically subject to the obligations encompassed in the conventions. This does not mean, however, that South Africa has no legal obligations to any of the undocumented minors who are classified as stateless persons. One of the arguments to support this is ‘the right to a nationality’, which is entrenched in both international and domestic law.

c) Right to nationality

Article 15 provides that ‘everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’22 The International Covenant on Civil and Political Rights, to which South Africa is a party, asserts that ‘every child has the right to acquire a nationality.’23 Section 28 of the Constitution affirms that ‘every child has the right to a name and a nationality from birth.’

Despite both international and domestic law providing for the right to a nationality, the right seems to be limited in terms of section 2 of the Citizenship Amendment Act of 201024. It provides that a person born in the Republic who is not otherwise a South African citizen (by virtue of his parents’ nationality, for instance) and is not a citizen or a national of another country may be a South African citizen by birth so long as his birth was properly registered.

In theory this provision seems to be the solution to children who are born in the Republic from parents who have other nationalities. In reality the requirement of birth registration is a difficult process for foreign nationals, especially in the case of foreign nationals who do not have valid documentation due to various reasons. The Department of Home Affairs is currently not registering children born of foreign nationals who have invalid documentation. This will hinder the child’s ability to claim South African citizenship at eighteen years and thus contribute to the risk of such children becoming stateless.

Similarly, children who were not born in South Africa but travelled to South Africa at a very young age or who were abandoned and have no ties with their countries of origin also face statelessness as the above provision only applies to those children born after 2013.

Thus, by the very fact that South Africa is obligated to protect the best interests of the child and by extension allowing the child to acquire a nationality, South Africa is obligated to put in place mechanisms which ensure that all children born in South Africa are registered to avoid them being stateless or be at risk of becoming stateless.

CONCLUSION AND RECOMMENDATIONS

The stringent requirements set out in South African national law, with regard to unaccompanied and separated minors, results in children in the country not being recognised as nationals and not being properly documented. This has a direct bearing on the types of services accessible to this group of children.

It is recommended strongly that the State expedite and simplify the process of unaccompanied and separated minors becoming documented. The consequence of South Africa not implementing international and domestic laws more progressively and practically have left and continue to leave children destitute, which goes against their rights entrenched in the Constitution. The South African Government is obligated to protect minors in these situations and especially minors in South Africa without parents, without a home, without documentation, and without a nationality. South Africa further needs to enact legislation and/or regulations which give state officials the necessary guidelines to deal effectively with the potential realities with which unaccompanied and separated minor children are faced.


 

  1. UN High Commissioner for Refugees (UNHCR) Refugee Children: Guidelines on Protection and Care (1994)
  2. Ibid
  3. UN High Commissioner for Refugees (UNHCR) Refugee Children: Guidelines on Protection and Care (1994) at 121
  4. UN High Commissioner for Refugees (UNHCR) Refugee Children: Guidelines on Protection and Care (1994) at 99
  5. Refugees Act 130 of 1998, section 32
  6. F. Khan and T. Schreier Refugee Law in South Africa (2014) at 149
  7. The Constitution of the Republic of South Africa, 1996
  8. Act 130 of 1998
  9. F. Khan and T. Schreier Refugee Law in South Africa (2014) at 150
  10. ‘…, a person qualifies for refugee status for the purposes of this Act if that person – is a dependent of a person…’
  11. Refugees Act No. 130 of 1998, section 1
  12. Bulambo Biakomboka Mubake v Minister of Home Affairs and Others, Gauteng Division of the High Court, Case No. 72342/2012 (Unreported judgment)
  13. Gauteng Division of the High Court, Case No. 72342/2012 (Unreported judgment), paras 10–17
  14. Bulambo Biakomboka Mubake v Minister of Home Affairs and Others, Gauteng Division of the High Court, Case No. 72342/2012 (Unreported judgment), para 16
  15. UN Committee on the Rights of the Child (CRC), UN Committee on the Rights of the Child: Concluding Observations: South Africa, 30 September 2016, CRC/C/ZAF/CO/2 available at: http://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/ZAF/CRC_C_ZAF_CO_2_25463_E.pdf [accessed 17 October 2016]
  16. The Constitution of the Republic of South Africa (1996) chapter 2
  17. Ibid at 97
  18. Act 130 of 1998
  19. UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html
  20. UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html
  21. UN High Commissioner for Refugees (UNHCR) Refugee Children: Guidelines on Protection and Care (1994) at 104
  22. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html
  23. Article 24 (3)
  24. Act 17 of 2010