Are there durable solutions for Unaccompanied and Separated Foreign Children in South Africa?

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.[1] 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.

[1]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.