What is South Africa doing about its invisible children? Scalabrini Centre of Cape Town’s new report on migrant children in South Africa informs Times LIVE’s article, which coincides with last week’s colloquium on migrant children. The colloquium proposed interdepartmental committees to assist migrant children & to review existing laws and policies. Read more here.
This World Statistics Day, we look at new statistical research on a population for which no data exists: Unaccompanied and Separated Foreign Children in South Africa.
World Statistics Day emphasizes the critical role of high-quality statistics in informed policy decision-making and better governance. The number of children migrating alone or with an unrelated adult to South Africa is unknown. As a result, the absence of relevant immigration and protection policies can result in these children falling through the cracks of social and legal systems. They become vulnerable to abuse, exploitation and statelessness.
Our new research, Unaccompanied and Separated Foreign Children in the Western Cape, South Africa: Exploring (the lack of) durable solutions for children in informal relations of care, analyses statistics generated by over a hundred surveys with migrant children and their caregivers.
These children migrate alone, or with an unrelated adult, from countries such as DRC, Somalia and Burundi. The report exposes the severe lack of documentation options available to these children: 21% of the children are at risk of becoming stateless, leaving them without the ability to access any formal rights. A further 55% of these children lack birth certificates, which often renders access to education, healthcare and social services difficult.
The research combines a literature review, qualitative and quantitative research methods and a reflection on applicable law and policies. The report finds that Unaccompanied and Separated Foreign Children in South Africa struggle to access documentation because:
1. Children with asylum claims have difficulty in accessing appropriate documents.
The research found that 39% of the surveyed children left their country of origin due to conflict. These children seem, therefore, to have refugee claims and should be documented under the Refugees Act. The Refugees Act allows a child to apply for asylum if he/she left their country of origin due to a well-founded fear of being persecuted, or due to conflict. The research found that children with asylum claims faced barriers in applying for asylum. For example, as the Refugee Reception Office is closed in Cape Town, children have to travel to Durban, Pretoria or Musina to apply for asylum.
2. Migrant children have difficulty in accessing appropriate documents.
Of those surveyed, it was found that 49% of the children came to South Africa for reasons other than conflict. These children may migrate due to the death of parents in their country, or to join relatives in South Africa, or for better education opportunities. These children should, therefore, be documented under the Immigration Act. However, these children cannot typically fulfil the requirements of the Immigration Act, and therefore remain undocumented in South Africa.
3. Many of the children surveyed did not hold a birth certificate.
The right to a name and nationality is outlined in Chapter 2, section 28 of the South African Constitution. Whilst a birth certificate does not grant a foreign child legal rights to be in South Africa, it establishes the child’s name and nationality. A birth certificate is typically issued by the country where a child is born. The research found that 55% lacked a birth certificate, which renders these children at risk of statelessness.
Without identification documentation and legal stay in South Africa, access to education, child protection services and healthcare is very difficult.
What are the durable solutions?
In some cases, family reunification is in the best interests of the foreign child. The research finds, however, that family reunification was not being pursued in any cases. This is often due to the lack of capacity faced by bodies such as the International Social Services. In other cases, documentation in South Africa is found to be in the best interests of the child. This, as we have seen, is problematic.
Recognizing that it is in the interest of the South African state to identify, document, and find solutions for these foreign children, the report recommends the following measures be taken (for a full overview of the recommendations please read the report):
• A mechanism should be established to register the presence of unaccompanied and separated minors within the Republic, for reasons such as mentioned earlier: To enable access to the right to a name and nationality; To enable authorities to keep track of the size of this group so as to identify the needs and extent of the State’s duties towards such children; To enable authorities to make appropriate referrals.
• It is recommended that a link be established between the Department of Home Affairs (DHA) and he Department of Social Development (DSD) to liaise over matters concerning Unaccompanied or Separated Children.
• With regard to refugee children, it is recommended that the DHA facilitate simpler access to the asylum system for Unaccompanied and Separated Children. To improve access to this highly vulnerable group, it is recommended that at least one satellite office within each province should receive asylum applications by Unaccompanied and Separated minors. It is recommended that Unaccompanied and Separated Foreign Children’s cases be prioritized by Home Affairs and treated with the necessary attention.
• With regard to birth registration, it is recommended that the relevant sub-sections of Regulations 3, 4 and 5 to the Birth and Death Registers Act (BDRA) should be reviewed to ensure that every child, regardless of the legal status of their parent(s), can access nationality from birth, as well as other socio-economic rights conferred through the Constitution that require documentation.
• It is recommended that Section 24 and 25 of the Children’s Act be amended to allow guardianship applications by non-citizens in principle and to grant jurisdiction to the Children’s Court to deal with such applications.
• It is recommended that DSD and CPA strengthen relations with International Social Services (ISS) counterparts in main sending countries and make such information available. Further research is needed around alternative care placements in the country of origin.
• It is recommended that South Africa sign and ratify the Conventions pertaining to statelessness and attend to the implementation of a domestic mechanism to address statelessness.
The remaining percentage of children came for other reasons, examples of those would be: abduction, the caregiver was in need of medical care or the main caregiver relocated.
The Scalabrini Centre of Cape Town (SCCT) would like to thank the Cape Town based consultancy company Eighty20 for their assistance in formulating a related survey, upon which some of the focus group discussion questions were based. We would also like to thank all focus group participants for their time, openness and generosity in sharing their individual experiences and personal stories.
Today, the Scalabrini Centre of Cape Town celebrates the International Day of the Girl Child. The day promotes the empowerment of girls and highlights existing challenges faced by girls all over the world.
With increasing conflict areas in African countries, more people find themselves displaced. It is estimated that, out of those fleeing conflict, more than half are woman and children.
When settling into new countries like South Africa, there are specific barriers that girl refugees and migrants face. This year’s theme of the International Day of the Girl is ‘EmPOWER girls: Before, during and after conflict’.
The theme addresses the unique challenges refugee and migrant girls face in settling in receiving countries. Girl migrants and refugees have specific challenges in attending school and other services. Girls are more likely to face gender based discrimination and violence, or familiy or cultural pressure to get married at a young age and bear children.
The Scalabrini Centre of Cape Town (SCCT) encounters cases of girl migrants and refugees. Some migrate to South Africa with family, or with other adults (so-called separated children), or alone (unaccompanied). A report recently completed by SCCT found that, of those cases of separated and migrant children, 54% were girl children. Of the surveyed children, 81% were not able to secure documentation in South Africa.
Documentation is central to a child’s protection, and to accessing basic services such as education and medical care. Furthermore, foreign children are often without any form of documentation can be at risk of detention and deportation as ‘illegal foreigners’ because, although the deportation of under-18s is not permitted in law, there exists no documentation to prove their age. Undocumented children may be at risk of becoming stateless, also, as there exists no document stating their nationality.
The Advocacy Programme at SCCT therefore assists in explaining and advising children and their caregivers in terms of their documentation options in South Africa. The Advocacy Programme also conducts interviews and appropriate referrals for these cases. Such referrals include referrals to relevant services, schools and social workers.
South Africa has one of the most progressive constitutions in the world. Children’s basic rights in the constitution, which are given life in South Africa’s Children’s Act, apply to all children in South Africa, regardless of nationality. Through advocacy and improving policies, we aim to for the full realisation of these rights.
- Each year on the 5th of October, World Teachers’ Day is celebrated in over a 100 countries, including South Africa. The day brings together governments, NGO’s, teachers and experts in the field of teaching for discussions on policies, legislation and recommendations to be implemented in an effort to cultivate a thriving society through education.
As part of the Scalabrini Centre of Cape Town (SCCT), the Scalabrini English School runs a programme which offers 10 levels of English classes to refugees and migrants, and enrolls around 450 non-English speaking students per term. Remarkable about the school is that they developed and use a special tailored educational curriculum to teach migrants and refugees English in South Africa.
Students currently registered with the school praised their teacher’s efforts, adding the following comments about their journey thus far:
“I enjoy English classes because it helps me to get more words, new expressions and vocabulary and how to use it. English is key for everyone particularly if you stay in an Anglophone country. It can help you to interact, to work or to communicate with other people. It’s about integration.”
“The Scalabrini Centre starts to teach you English from zero up to you get enough English. So far English School helps me the most because I can talk better English, I can talk to other people in English. Scalabrini is the best for me. My teacher is a very good teacher, I would like to give thanks to my teacher. I enjoy reading books, conversation club spelling, grammar and writing.”
Teachers play an important role in shaping the lives of their many students. With this year’s theme being “Teaching in Freedom, Empowering Teachers”, we would like to thank all teachers from the English programme for enriching their student’s life’s and empowering all the foreign individuals they teach.
With growing numbers each new term, the English School hopes to find better means to enrol more students in the future whilst at the same time nurturing a more inclusive and tolerant society to people integrating in South Africa.
Speaking on the positive work the school is doing, Kate Body, English School Manager, had the following to say about the programme:
“The English School at Scalabrini is incredibly grateful and humbled by the work of our teachers, tutors and facilitators. We have close to 50 educational volunteers who all share a common love of empowering others through education. These dedicated volunteers give up their free time and give freely of their knowledge and experience and in return learn as much as their students about different cultures, traditions and life experiences. As part of the Scalabrini ethos, it is understood that our students are in fact not just students but teachers themselves. The English School wishes all our teachers and students a much appreciated World Teacher’s day.”
”These dedicated volunteers give up their free time and give freely of their knowledge and experience and in return learn as much as their students about different cultures, traditions and life experiences.”
Written by Pakamani Nombila
This is a press release originally released by Legal Resource Centre, see here.
For Immediate Release: 29 September 2017
The Department of Home Affairs given until March 2018 to reopen and maintain a fully functional refugee office in Cape Town.
Today, 29 September 2017, in the Supreme Court of Appeal, a decision taken by the Department of Home Affairs (DHA) to close the Cape Town Refugee Reception Office (CTRRO) was declared unlawful.
This decision comes after the Legal Resources Centre, on behalf of the Scalabrini Centre, the Somali Association for South Africa and asylum seekers, appealed a decision by the Western Cape High Court which supported the DHA’s decision, despite opposition to the closure from civil society and asylum seekers and following two previous High Court orders and a Supreme Court of Appeal order declaring its closure unlawful.
The earlier SCA judgment in Scalabrini I was handed down in 2012 after the decision was successfully challenged. The SCA, however, gave the Director General of the DHA an opportunity to consider afresh the future of the CTRRO, after consulting with interested parties.
After consulting with interested parties, including a number of civil society organisations, and going against the unanimous view that the closure of the CTRRO would impact on the human rights of asylum seekers, the DHA made a decision for a second time, on the 31 January 2014, to close the CTRRO.
Our clients approached the High Court again, requesting it to review and set aside the decision, arguing that it is unlawful and unconstitutional.
In its arguments to the High Court in Scalabrini II, the DHA emphasised the procurement difficulties and costs associated with opening an RRO. The Court found in favour of DHA and the judgment was taken on appeal.
In the Supreme Court of Appeal judgment handed down today, the Court found that the decision to close the Cape Town Refugee Reception Office is irrational and unlawful. The Court found that the DG had ignored relevant factors when making his decision and that there is a level of demand and need for the CTRRO that must be considered, referring to the backlogs in the office. It stated that, “He also failed to properly consider whether the Cape Town Refugee Reception Office was necessary for the purposes of the Act.”
The Court found that the contentions of the DHA that there were difficulties obtaining premises, that the Refugees Act does not allow for satellite offices and that “substantial additional resources are required…have no merit”. The SCA also referred to the international obligations of the DHA in providing opportunities for refugees and asylum seekers to exercise their rights.
It should be noted that the Court viewed askance the failure of the DHA to implement previous court orders.
The Department of Home Affairs has been given until March 2018 to reopen and maintain a fully functional refugee office in Cape Town. The Court has also requested periodic updates from the DHA as to progress being made.
This judgment is crucial in upholding the rights and dignity of asylum seekers and refugees, who have been prejudiced by the policy decisions of the DHA. The ability of asylum seekers to access RROs to apply for permits and to support themselves and their family, as well as integrate into their community while their asylum applications are processed, is critically important if an asylum seeker is to enjoy their human rights.
“From our perspective, the urban RRO is incredibly important for the functioning of the asylum system – since this unlawful closure in 2012, asylum seekers have struggled immensely in accessing the most basic services with grave consequences. The RRO closure has meant asylum seekers and their families must travel long distances to the remaining three RROs every three to six months while they wait for their claims to be processed, which takes many years including appeals. This results in many asylum seekers being unable to keep their documentation valid. The closure of urban RROs has undermined the asylum process, which is not in the national interest.” Miranda Madikane — Director, Scalabrini Centre