lawrence-video-Prosecutor-Cleaner-Chef-immigration-refugee

Laurence: Prosecutor, Cleaner and Volunteer through Employment Access Programme

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We hear from Laurence, a prosecutor from the Democratic Republic of Congo (DRC), who has worked as a cleaner, cook and volunteer here in South Africa. Now, with the assistance of the Employment Access Programme, she is rising through the ranks, and reconnecting with her passion.

Fleeing the Democratic Republic of Congo

Laurence is a strong woman. In DRC, she was driven to become a prosecutor because women “didn’t have a say in the family and in society.” Laurence explains that it was her goal “to target all men who abuse women”. It was ultimately also this fire and passion that forced her to leave. When Laurence sentenced one particularly powerful man to prison, she began receiving death threats. “In Congo, when someone promises to rape and kill you, you better take that threat seriously. You have to run for your life.” Laurence fled to another city in DRC. There, she was warned that she was still not safe – and so she started her journey to South Africa.

Solidarity with South Africa

Laurence remembers the way Congolese people had helped South Africans during apartheid. “We prayed for South Africa from afar. We could feel the pain of people in South Africa. Growing up, I thought we are one with South African people.” This bond and sense of solidarity with South Africa encouraged her to seek asylum here. The reality of South Africa was, however, rather different to what she had expected.
Faced with a new country and a new language, Laurence found work as a cleaner and then a pizza chef. She worked these jobs for nearly a decade. Deeply frustrated that she could not use her legal skills, Laurence quit her jobs and started to volunteer at a primary school. She has worked her way up and is now vice chairperson of the school board.

Connecting to opportunities

Laurence sought assistance at the Employment Access Programme, which connects documented clients to job opportunities through skill training and professional development.

Here, Laurence’s legal qualifications were submitted to the South Africa Qualifications Authority (SAQA) and, whilst awaiting the outcome, she was connected to opportunities in French-English translation – including at a legal conference hosted by the Bertha Foundation. Finally, Laurence is starting to re-grow connections into the legal world. She sees her experience as a refugee as a key aspect to her upcoming opportunities.

A dream of home

Once the violence has subsided, Laurence hopes to return home to DRC. She’d like to resume her role of prosecutor. For other people in a similar situation, Laurence says: “I understand the pressures of everyday life, but it is important to follow your dreams and not only concentrate on working for money, because sometimes we have to make sacrifices in our life to reach our goals”.

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The Stateless Poet: Our New Video

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How many times have you been asked where you are from? It’s a common question – and it is usually easy to answer. For some of our clients, it is the most difficult question of all.

Watch our new video, made in partnership with B-Yond TV here.

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What’s the problem?

The Scalabrini Advocacy Programme works with several cases of individuals who are at risk of statelessness. A stateless person is someone who is not considered as a national by any state under the operation of its law. In other words, they have no nationality at all.
The effect of statelessness on youth is particularly devastating.

What’s the solution?
At Scalabrini, the Advocacy Programme assists individuals to establish their nationality through family tracing and visiting consulates. If it is established that an individual is stateless, there are applications that can be made to the Department of Home Affairs, but oftentimes this requires further legal assistance. Within South African citizenship and immigration law, some aspects speak to statelessness. If the Department of Home Affairs had a greater capacity to respond and process such applications, great headway could be made to address the issue of statelessness sin South Africa. Furthermore, if the South African government became signatories to the two international statelessness conventions, mechanisms could be put in place to deal with stateless persons and ensure their protection. We advocate that the South African government address the issue of statelessness within its borders. Indeed, groups of undocumented people are not conducive to a functioning state. Statelessness is therefore not only a problem for the individuals involved, but an issue the South African state has an interest in resolving.

Want to take action?
Share our video about Raibyah here!
Sign the petition to end statelessness in South Africa here.
If you have any questions pertaining to Scalabrini’s work on statelessness, please email lotte@scalabrini.org.za.

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What does integration mean to you?

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Here at Scalabrini, one of our main goals is the peaceful integration between migrants, refugees and citizens. Integration is not only about how hosts treat foreigners; it is about how migrants and refugees integrate themselves in different ways.

This womens month, we asked two women from Zimbabwe their thoughts.

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Watch Stembile’s story, who sees her Daycare Creche as a central part of her integration within South Africa:

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Watch Beatrice’s story as she reflects on integration in Cape Town:

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Cape Town the impact of being an undocumented child

The impact of being an undocumented child

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Did you know that, in international law, it is a child’s right to have a name, a nationality and immediate birth registration? South Africa is signatory to several international conventions that spell this out.* Here in South Africa, these rights are further enshrined in our Constitution, which confirms that all children in South Africa – regardless of nationality – have ‘the right to a name and a nationality from birth.’

The reality for some children, however, is very different. Regulations around birth registration in South Africa mean that children born to parents with expired documents and blocked or lost South African IDs cannot be issued a birth certificate. Watch this video and read this multi-organization press release to learn more.

But what does it actually mean for the child who does not hold a birth certificate? Here are just some of the impacts of being born an undocumented child.

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1. Accessing services becomes increasingly difficult
Many schools in South Africa require that a learner produce a birth certificate to enroll at school. This seems to be an ever-stricter policy. Undocumented children without birth certificates cannot enroll in school and are denied their right to basic education. Parents with no recourse to documentation are caught in limbo as they are not able to document their child. Access to healthcare becomes increasingly difficult as the child gets older. Once the child becomes eighteen years of age, the child is liable to detention and/or deportation.

2. The child is at risk of statelessness
A stateless person is defined as ‘someone who is not considered as a national by any state under the operation of its law’. In other words, a stateless person has no recognised nationality. An undocumented child is not able to prove who they were born to, or where they were born. They are therefore at risk of statelessness. You can watch a short film on a young man affected by statelessness here.

3. The child does not exist on any state system.
It is in the interests of a state to record how many children are born within its borders. Those without birth certificates are not entered into national population registers. This also means that the child without a birth certificate is more likely to remain undetected in terms of care and protection services. It was even found that some social workers within a South African context can be reluctant to take on cases of undocumented foreign children – which might be in part due to the complex issues around being an undocumented child.

There are many more effects of being an undocumented child. If you want to learn more about the work Scalabrini does around foreign children, you can read more here. Should you require advice on an undocumented child, please contact Scalabrini or visit our Advocacy Team, from 9am – 12pm, Tuesdays – Fridays.

*The international conventions that include a child’s right to a name, nationality and birth registration are: the 1989 United Nations Convention on the Rights of the Child (Article 7), the 1966 Covenant on Civil and Political Rights (Article 24) and the 1999 African Charter on the Rights and Welfare of the Child (Article 6).

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Cape Town Birth Registration In South Africa - Call for Change! Video

Birth Registration in South Africa – Call for Change!

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Hundreds of children are forced into undocumented lives and denied their basic rights simply due to their parents’ documentation status. The Scalabrini Centre of Cape Town, Lawyers for Human Rights and the Legal Resources Centre are calling for the South African government to change regulations around birth registration to ensure that a child’s right to birth registration is not contingent on their parents’ documents.

Read more here

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Benign Neglect or Active Destruction?

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In a four-part series, we summarize academic articles published by the Scalabrini Institute for Human Mobility in Africa (SIHMA), which conducts research on migration in Africa. The article summarized below, “Benign Neglect or Active Destruction? A Critical Analysis of Refugee and Informal Sector Policy and Practice in South Africa,” was originally authored by Jonathan Crush, Caroline Skinner, and Manal Stulgaitis.

In 2007, the Zimbabwean economy crashed, causing great numbers of Zimbabweans to come to South Africa in search of work and stability(1). The massive influx of migrants put the South African asylum system under significant pressure, shedding light on crippling weaknesses in the system. Unfortunately, the asylum has increasingly been conflated with generalized migration. Officials across the country adopted the position that 90% of asylum seekers are economic migrants and denounced them as abusers of the asylum system.(2)

Looking at the big picture, the underlying problem is not the arrival of migrants and asylum seekers, but the fact that the South African asylum system is overwhelmed, corrupt, poorly-informed, and mismanaged. Delays in status adjudication, arbitrary status decisions, and the tendency to decide claims based on a migrant’s home country rather than individual experiences are all commonplace. Moreover, widespread xenophobic attitudes portray migration as a zero-sum game in which any advantages for migrants come at the cost of South Africans and which fail to acknowledge the positive economic, cultural, and social contributions that migrants and asylum seekers make.

In their recent survey “Benign Neglect or Active Destruction? A Critical Analysis of Refugee and Informal Sector Policy and Practice in South Africa,” Jonathan Crush, Caroline Skinner, and Manal Stulgaitis discuss these features of the asylum and migration landscape, connecting them to an overarching trend of rising restrictionism in asylum practice. They find that the post-apartheid refugee protection regime has shifted from a strongly rights-based approach to an approach rooted in restrictionism, exclusion, and general incompetence among status determination officials and others who implement refugee policy. Moreover, since the 1990s, the livelihoods of the many migrants and refugees who work in the informal sector – running shops and micro-businesses, street vending, etc. – have been threatened by sporadic governance. At best, municipal authorities across the country have neglected the informal sector in their policies, but at worst, they have actively sought to eradicate informal business. All of these trends and developments point to the necessity of rights-based refugee systems and more progressive, supportive informal sector policies.

From Rights-Based Protection to Rights Restriction

Drawing inputs from a variety of sources and 30 in-depth interviews with informants in Cape Town, Limpopo, and Gauteng, the authors identify the 2017 Refugees Amendment Act and the Green Paper and White Papers on International Migration in South Africa as embodiments of the shift from post-apartheid rights-based refugee frameworks to more restrictive, rights-limiting legislation. Over time, the rights-based policy reflected in the 1998 Refugees Act has eroded due to a combination of factors: struggles with effective and efficient implementation, the migration pressure brought by Zimbabwe’s 2007 economic collapse, engrained xenophobia among the public and policy makers, and most broadly, high numbers of migrants and asylum seekers coming into a system that is under-resourced, under-staffed, poorly-trained, and increasingly corrupt.

Four connected strategies are embedded in the 2016 Refugees Amendment Act, Green and White Papers, and other migration policy instruments, aiming to restrict rights, opportunities, and livelihood stability for refugees. The implicit goal is to make South Africa a significantly less desirable destination for asylum seekers.

First, there continues to be a visible shift from the earlier refugee protection paradigm of integration to one based on encampment. The DHA (Department of Home Affairs) intends to create isolated Asylum-Seeker Protection Centers that would essentially serve as detention centers where asylum seekers live until the conclusion of their status determination processes; this system would bar asylum seekers’ abilities to integrate, find work, study, or move through the country freely, and it would render them dependent on the UNHCR or government for basic needs.

Second, logistical and administrative barriers have been established on multiple levels to undermine refugees’ stability. The number of Refugee Reception Offices (RROs) was cut in half by the DHA, and the current requirement that asylum-seekers renew their permits every one to six months at an RRO rather than at Home Affairs offices places significant financial and logistical hardships on the asylum-seekers. Moreover, the 2016 Refugees Amendment Act holds that a refugee or asylum seeker who fails to renew her permit within a month of its expiration will automatically have her status revoked, forfeit her right to future permit renewal, and be vulnerable to detention and arrest as an illegal foreigner. Under the act, a refugee can also only apply for permanent residence after ten years instead of the previous five. (3)

Third, recent policies and legislation have sought to undermine court judgements that have affirmed refugees’ and asylum-seekers’ rights to self-employment and other work. One aim of the 2016 Refugees Amendment Act is to overturn a judgement that affirmed asylum-seekers’ right to work while their refugee claims are adjudicated; this would make asylum-seekers dependent on friends, family, NGOs, and the UNHCR for shelter and support before they receive status decisions, disabling them from self-support for what can be a very long time.

Fourth, actions have been taken to limits asylum-seeker and refugees’ access to crucial financial services. Some banks refuse to open accounts for refugees and asylum-seekers, demonstrating low trust in Home Affairs documentation and only sanctioning accounts for individuals with South African national identity cards. Refugees who have managed to open accounts have repeatedly seen their accounts frozen due to changes in documents or the DHA failing to respond to verification enquiries, threatening the account holders’ abilities to afford rent, food, and travel to renew their status documents. Consequently, many refugees have to keep large stashes of cash in their homes and businesses, and especially in informal settlements and townships, these places are targeted by thieves and burglars.

Neglect and Targeting of the Informal Sector

Informal sector policies directly impact refugee livelihoods, as the lack of job opportunities in the formal sector largely restricts refugees to work in the informal sector. Surveying policies and actions from different levels of government, it becomes clear that South African treatment of the informal sector and migrants within it has been highly irregular, varying between neglect and marginalization to intentional destruction and oppression.

The apartheid government had a long history of opposing informal sector activity before the 1991 Business Act 71 started a reversal of the limiting apartheid policies. This more welcoming attitude toward informal business was again reflected in the 1995 White Paper on the Development and Promotion of Small Businesses and the 1996 National Small Business Act, which entitled survivalist businesses and micro-enterprises to government support and recognition in theory. Nevertheless, both pieces of legislation fail to acknowledge the specific concerns of migrants or refugees and generally overlook informal business. Moreover, the Department of Trade and Industry (DTI) has worked to build a nation-wide network of Local Business Development Centers to support enterprises of different size, but informal sector businesses still mostly fall through the cracks between unemployment and small business.

In 2003, President Mbeki gave the informal sector its first clear political recognition since the end of apartheid when he outlined the characteristics and potential of the so-called “second economy” – an economy that includes the impoverished rural and urban communities that make up much of the South African population, contributes minimally to the GDP, and generally struggles to drive its own growth or connect to the national “first economy.” Mbeki proposed a variety of measures to invest capital and resources into the second economy to help it integrate into the developed first sector.

However, since 2012, the informal sector has received national attention in a very sporadic, often disabling way. On the more benign side, The National Development Plan aims to create millions of jobs by 2030, including as many as 2.1 million informal sector jobs, but it includes no clear strategy for how this will be accomplished or how to knock down barriers that limit informal sector growth. DTI has been much more contradictory in its informal sector policies. In 2012, it established a directorate to support informal business development; the very next year, it released a Draft Business Licensing Bill that has been criticized for criminalizing the informal sector.

Some policies and practices go further, discriminating against migrants in the informal sector. In 2014, DTI’s National Informal Business Upliftment Strategy has signs of anti-migrant sentiment, referencing migrant takeover of local businesses. Though supposed to constructively regulate and support the informal sector, province governments have significant freedom in continuing to target migrant informal businesses. Limpopo Province launched a military-style crackdown called Operation Hardstick in 2012, in which police targeted migrant-run informal businesses, shut down over 600 businesses, detained shipowners, and told some business owners who were also refugees and asylum-seekers that their permits did not entitle them to running a business. Local governments have shown a pattern of targeting street vendors who are also migrants; in 2013, the Johannesburg City Council removed 6000 street traders, many of whom were migrants and asylum-seekers. The Cape Town government, meanwhile systematically excludes the contributions and development of street trade and township trade, and Somali-owned spaza shops in particular have been prohibited in some areas.

Conclusion

To conclude, Crush, Skinner, and Stulgaitis’s coupled analysis of refugee protection policy and treatment of the informal sector reveals that migrants and asylum-seekers must operate in an environment that limits their integration and stability at virtually every turn. The rights-based, more liberal refugee protection policies phased in after apartheid have given way to a much more restrictive approach. Not only does the DHA aim to severely limit asylum-seekers’ integration and mobility by phasing in an encampment strategy, but asylum-seekers and migrants also face numerous legal and administrative barriers in building stable lives in South Africa, are targeted by efforts to undermine court judgements that have affirmed their rights, and suffer from practices that stifle their access to banking and other financial services.

To compound all of these challenges, the government acts on a spectrum that runs from neglect to outright destruction of the informal sector businesses that provide so many refugees with incomes and livelihoods. In such a disabling and contradictory environment, migrants are pressured to be extremely self-reliant by the harsh protection policies, yet their self-reliance is constantly undermined by destructive or irregular informal sector policies. Litigation and the work of non-governmental organizations has helped to underline the contradiction between the generous rights listed in the South African Constitution and Refugees Act and the oppressive, marginalizing actions of government departments implementing and writing policy. However, the greater hope is that legislation and policy implementation that encourage migrants’ integration, rights, and economic contributions will come to replace the recent coercive approach.

This summarised article was written by a Scalabrini Centre of Cape Town Volunteer Lucy Arnold

CLICK ON THE IMAGE TO DOWNLOAD PDF

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References
(1) Crush, J. and Tevera, D. (Eds.). 2010. Zimbabwe’s Exodus: Crisis, Migration, Survival. Ottawa: IDRC and Cape Town: SAMP.
(2) DHA. 2016. Green Paper on International Migration in South Africa. Pretoria: Department of Home Affairs.
(3) The 2013 Angolan Cessation is another key example of policy actions undermining refugee status. Rolled out by the DHA, this policy stripped Angolan refugees of their status regardless of how long they had lived in South Africa, issuing them two-year non-renewable temporary residence permits to allow them to set their affairs before their mandatory return to Angola. This action has been challenged successfully by a variety of organizations and affected individuals, but it still sets the precedent that the Minister of Home Affairs can end the recognition of refugee individuals or groups and revoke their status without justification.

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Annual Report 2018 released

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Cape Town Our Call to Action Birth Registration in South Africa

Our call to action: birth registration in South Africa

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The Scalabrini Centre of Cape Town, Lawyers for Human Rights and the Legal Resources Centre have released a video about birth registration in South Africa, and are calling on the South African government to change the regulations.

Hundreds of children are forced into undocumented lives and denied their basic rights due to their parents’ documentation status. The Scalabrini Centre of Cape Town, Lawyers for Human Rights and the Legal Resources Centre call for the South African government to amend regulations around birth registration to ensure that a child’s right to birth registration is not contingent on their parents’ documents.

The Scalabrini Centre of Cape Town, Lawyers for Human Rights and the Legal Resources Centre are releasing a video on this issue to raise awareness and advocate for the amendment of the regulations on birth registration relating to children born to undocumented parents.

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Background

A birth certificate is a vital document. It establishes a child’s identity, nationality and existence in a state. It is required to access services such as education and health. Without a birth certificate, a child does not ‘exist’ in the state’s eyes. This child cannot access school, is at risk of statelessness and is vulnerable to falling under the radar of child protection services. Hundreds of children exist in this shadow-state, due to the restrictive rules around birth registration in South Africa.

Children are being penalised and are denied their constitutional right to birth registration – simply because their parents hold expired documents.

Regulations that govern the application of the Birth and Deaths Registration Act require that a parent wishing to register the birth of their child must hold a valid document in South Africa. Whilst this might seem like a logical requirement of foreigners in South Africa, ensuring valid documentation in South Africa can be complex and, sometimes, impossible. For example, the ongoing closure of the Cape Town Refugee Reception Office has forced asylum seekers into travelling long distances to remain documented. Long queues, denied access and corruption exasperate the difficulties around extending permits.

As a parent with an expired permit, you are not able to register the birth of your child. As Sindisiwe Moyo of Scalabrini explains in the video, this means that ‘the country is sitting with a huge number of children who are not known to exist in South Africa’.

Recent Developments
In early July 2018, the High Court of South Africa, Grahamstown Division, declared the birth registration regulations unconstitutional in that they denied birth certificates to those children whose parents could not fulfil documentation requirements. The case, brought by Lawyers for Human Rights, Legal Resources Centre and the Centre of Child Law, is welcomed by the civil society sector. The judgement echoes the calls of the UN Committee on the Rights of the Child, which officially recommended that South Africa change the regulations around birth registration.

With this video, we are calling on the South African government to urgently repeal and edit the regulations around birth registration in South Africa. Birth registration is a constitutional right of a child and cannot be dependent on their parents’ documentation status.

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Spazas, Foreigners, and Crime – It’s More Complicated than That.

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In a four-part series, we summarize academic articles published by the Scalabrini Institute for Human Mobility in Africa (SIHMA), which conducts research on migration in Africa. The article summarized below, “Xenophobia, Price Competition, and Violence in the Spaza Sector in South Africa,” was originally authored by Prof. Laurence Piper and Andrew Charman.

In May 2008, the world watched in shock as xenophobic violence raged across South Africa. Nationals violently attacked foreign nationals, displacing tens of thousands of migrants and brutally killing over 60. Migrants’ properties and businesses were destroyed in great numbers, with over 550 foreign-owned shops looted or burned to the ground.

This storm of attacks ushered in a decade of rising awareness of xenophobic violence among South Africans, and it has become widely assumed that this violence and accompanying xenophobic attitudes are driven by migrants taking jobs and services from South Africans. As seen in the violence ten years ago, foreign-owned shops suffer high risks of being targeted because of this assumption, with grocery or convenience stores called spazas especially recognized as xenophobic violence hotspots today. Central to the economy of townships – predominantly poor, black settlements that are part of apartheid legacy – spazas are targeted with high levels of violent crime regardless of shopkeeper nationality, but foreign shopkeepers are at greater risk because they are believed to outcompete local shopkeepers.

In their article “Xenophobia, Price Competition and Violence in the Spaza Sector in South Africa,” Laurence Piper and Andrew Charman investigate whether this assumption is supported by data and the actual experiences of shopkeepers of different nationalities. Though they find no absolute connection between foreigner status and price cheapness (business competitiveness) or levels of violence experienced, they discover a close correlation between crime levels and competitiveness. These results thus paint a much more nuanced picture of the dynamics at play between migrant communities, township businesses, xenophobia, and violent crime.

Business competitiveness and xenophobic violence in townships

The last ten years have seen growing foreign ownership of spazas. Most foreign shopkeepers come from other African countries, with the survey including shopkeepers from Angola, Burundi, DRC, Egypt, Ethiopia, Lesotho, Mozambique, Namibia, Pakistan, Rwanda, Somalia, Tanzania, and Zimbabwe. An additional minority of shopkeepers come from Bangladesh. Approximately half of the shopkeepers in the survey sample were foreigners, and Somali was the second most common nationality after South African.

In order to disentangle the factors of nationality, price competitiveness, and violence, Piper and Charman drew on survey data from over 1050 shopkeepers in eleven township and informal settlement areas across Cape Town, Gauteng, and Durban. The surveys reported shopkeepers’ nationalities, their selling prices for twelve common products (milk, eggs, bread, sugar, Coke, cigarettes, etc.), and their experiences with violent crime over the past five years. While the price data was used to construct a price comparison across survey sites and shopkeeper nationalities, crime data was used to create a parallel comparison for the number of violent incidents – murder, attempted murder, armed robbery, theft, arson, assault, and harassment – across the same categories.

Price-wise, Somali and Bangladeshi shopkeepers were found to have the cheapest prices (most competitive businesses) overall, while Zimbabwean and Mozambican shopkeepers registered more expensive prices than South African shopkeepers. For some of the most common products – namely one liter of milk and a loaf of white bread – South African shopkeepers actually outcompeted most foreign shopkeepers, though the average price difference between South Africans and foreigners was small overall.

In terms of crime, 71% of spaza shops had experienced at least one crime in the past five years, and 45% reported a violent crime such as armed robbery, assault, arson, attempted murder, or murder. The types and levels of crime experienced varied significantly depending on the area and shopkeeper nationality. Bangladeshi, Somali, and Ethiopian shopkeepers reported the highest crime rates, and the least affected groups were Zimbabwean, Mozambican, and other foreign shopkeepers. South African shopkeepers fell in the middle – 62% had experienced crime in the five year span.

In all, the data reflects that regardless of nationality, running a spaza shop is extremely dangerous, though certain nationalities are especially at risk. The risk of murder increases to 46 times the national average for the typical shopkeeper, but for Somali shopkeepers, the murder risk is over 100 times the average.

Conclusion

Comparing the price data and violence records, Piper and Charman found a clear correlation between the level of violence experienced and price competitiveness, through their findings in terms of nationality are less certain. Listing the lowest prices overall, Somali and Bangladeshi shopkeepers faced the highest rates of crime, but while Somali shopkeepers suffered the most from extreme violence (such as armed robbery, assault, attempted murder, and murder), Bangladeshis experienced more mild forms (theft, arson, and harassment). This suggests that factors aside from price competitiveness contribute to the violence experienced by foreign groups.

To summarize, profitable shops with cheaper prices are more likely to experience crime than profitable shops with higher prices. This is only a general trend in the complicated network of issues surrounding foreign and local shopkeepers, price, experienced crime, and location. The article concludes that more research is therefore needed to determine the other factors impacting spaza and xenophobia dynamics in townships and informal settlements.

This summarised article was written by a Scalabrini Centre of Cape Town Volunteer Lucy Arnold

*Crush, Jonathan. “The perfect storm: The realities of xenophobia in contemporary South Africa.” (2008).

See the infographic below, click image to download PDF:

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Caught in a Catch-22: Child Migrants in South Africa

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Are short-term plans and implementation gaps putting foreign children at risk?

In a four-part series, we summarize academic articles published by the Scalabrini Institute for Human Mobility in Africa (SIHMA), which conducts research on migration in Africa. The article summarized below, “No Future for our Children: Challenges faced by foreign minors living in South Africa,” was originally authored by Ncumisa Willie and Popo Mfubu of the Refugee Rights Unit at the University of Cape Town.

In 2004, a court case brought by the Centre for Child Law reflected the severe challenges and restrictions that children face in the South African migration landscape. Responding to the detention of over 100 children at Lindela, including some who were illegally held with adults, the Pretoria High Court ruled that such detention of minors was unlawful and a shameful transgression against the children’s rights and interests (1). In spite of this, approximately 50 children have been discovered at Lindela since 2016.(2)

The ongoing arrest and detention of foreign children underlines the need to address the adversity that they face upon entering South Africa, especially given that civil conflicts and trans-border migration have brought more and more child migrants into the country in recent years. Though South Africa has accepted international obligations to act in children’s best interests and arguably possesses one of the strongest and most progressive foreign child protection frameworks in Africa, severe gaps in implementation and interpretation often make foreign children’s long-term welfare an unattainable ideal rather than a reality.

In their recent review of the legal and political structures that deal with different categories of foreign children, Ncumisa Willie and Popo Mfubu highlight the deficiencies in the state asylum-seeking and child protection systems, drawing attention to the practical challenges that foreign children face in accessing documentation and social services. They find that the lack of long-term focus or flexibility in the current system especially hurts unaccompanied and separated foreign children, forcing them into a vulnerable “legal lacuna” or void as soon as they reach majority age. Here, it should be noted that a separated child may have a non-parent adult accompanying her, but an unaccompanied child has no adult with her. Across all foreign child categories – including accompanied foreign minors with refugee claims, as well as unaccompanied or separated children without them – it is concluded that children’s situations are approached in a narrow and short-sighted way that is crippled by poor understanding of the relevant laws among involved officials.

Obligations, Procedures, and Struggles Surrounding Foreign Child Protection

As a signatory of the 1989 Convention on the Rights of the Child, South Africa is internationally obligated to pass and implement laws for the realization of children’s interests. At the same time, Section 28 of the South African constitution establishes the duty to protect, fulfill, and promote children’s rights, and the 2005 Children’s Act gives effect to those rights and sets principles for children’s care and protection. As neither document distinguishes between foreign and South African children, South Africa is duty-bound to protect all children regardless of nationality or status. Moreover, under the 1998 Refugees Act, the Children’s Court can order that a child with a valid refugee claim be assisted in applying for asylum and documentation.

In theory, several basic steps are followed when a foreign minor is discovered. While identifying the nature of the child’s situation, it is determined whether she is unaccompanied or separated from her parents or guardians; if so, she is assumed to require care and protection and arrangements are made to improve her situation. Also, if she is found to have a strong refugee claim, involved officials help her to apply for refugee status documents. Meanwhile, the child’s social worker should find out both why she left the home country, why she is alone, and whether there are parents, caregivers, or extended family members able to care for her and provide for her needs. The child is reunited with these relatives if they are found and if repatriation serves her best interests. Otherwise, alternative care arrangements are recommended to the Children’s Court. Throughout this process and afterward (if alternative care is necessary), the child can be placed in foster care, temporary safe care, a Child and Youth Care Centre, or other forms of care.

Unfortunately, children navigating this process face a host of challenges in accessing social and economic services, applying for documentation, and securing their long-term future wellbeing. Unaccompanied children often remain undocumented because status determination officers assume that they can only deal with children as dependents of an adult or part of a family (3). The same is true for unaccompanied/separated children without refugee claims, who are dealt with under the Immigration Act (4) and cannot receive permits because they are not traveling as dependents of an adult. Across both the Refugees and Immigration Act, this practice leaves unaccompanied children with no place to turn in seeking documents. The lack of documents can then bar them from accessing education, healthcare, and other services, as well as leave at risk for detention and arrest. Additional problems include social workers and other officials’ failure to account for child-specific refugee claims (such as risks of forced service as child soldiers or forced child marriage) and a short-sighted emphasis on children’s placement in secure but temporary care. Lacking documentation and often considered resolved cases as soon as they are placed in a safe environment, unaccompanied children lose all protection once they come of age. Overnight, they are shunted from enjoying safety and protection under the Children’s Act to suffering risks of being arrested, detained, and deported as illegal migrants.

Separated foreign children with refugee claims face many of the same problems in gaining documentation, though they are not specifically catered for in the Refugees Act. According to court precedent, however, every separated child should be documented as soon as possible, with the Department of Home Affairs (DHA) helping the child with her asylum application before the Children’s Court releases its findings. The unfortunate reality is that in practice, the DHA often leaves children undocumented and vulnerable while the Children’s Court performs the inquiry. Meanwhile, accompanied foreign children with refugee claims are considered under their parents’ asylum applications as dependents. This means that a refugee minor is only able to apply for derivative asylum status and cannot have her independent asylum application adjudicated. Then, once she reaches 18 and is no longer a dependent, she can only stay in the country if she applies for asylum in her own right and receives a valid permit. To do this, she must base her application on the refugee claim that she possessed when first entering the country, which is often no longer reliable grounds for status.

Conclusion and Recommendations

Whether a child can be classified as unaccompanied, separated, or accompanied, and whether she has a refugee claim or not, she faces a number of barriers in securing a stable future in South Africa. Willie and Mfubu make a number of recommendations for better implementation and adaptation of the political and legal frameworks, urging measures that will more effectively serve children’s best interests and futures.

In the current situation, the intensive focus on short-term social welfare for undocumented and unaccompanied children has a large consequence: especially in the long-term, the children are denied access to services such as health care and education and suffer the risk of being arrested and deported. The children’s position as foreign nationals and lack of documentation are held against them when they try to access their rights and services. Children’s Court officials and social workers are poorly versed in the children’s specific vulnerabilities as foreigners and the full protections they are entitled to. Within the legal framework of children’s protections, a step to remedy this could be to insert the clause “irrespective of nationality” and mentions of unaccompanied/separated foreign children in the Children’s Act. Moreover, when evaluating whether a child needs care or protection, the DSD should be more systematic in determining whether the child needs legal documents, recognizing that a lack of documents makes the child more vulnerable to exploitation or unlawful detention. The Children’s Court should likewise play a more active role in deciding whether a child needs care and protection and in enlisting legal experts to provide input about a child’s qualification as a refugee.

Overall, implementation of the frameworks in place must shift from a short term emphasis on children’s immediate welfare and temporary care to forward-looking efforts that prioritize children’s need for documentation and recognize the distinct vulnerabilities and claims to residency in the country that children have. Until this transition effectively takes place, the present and future security of child migrants and asylum seekers is in jeopardy.

See infographic below, click on image to download PDF:

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This summarised article was written by a Scalabrini Centre of Cape Town Volunteer Lucy Arnold

References
(1) – Centre for Child Law and Another v. Minister of Home Affairs and Others (High Court of South Africa, 2005).
(2) – Dyk, Joan Van. “Children illegally detained under Bosasas watch at Lindela as healthcare crumbles.” Bhekisisa Centre for Health Journalism. December 13, 2017.

Did Bosasa illegally detain kids while working for the department of home affairs?

(3) – More specifically, social workers and status determination officers restrictively believe that only section 3(c) of the Refugees Act (the part that applies to families) can be applied to children, instead of realizing that any section 3 ground for asylum can be applied to children. See also Section 32 of refugees act.
(4) – This in itself is problematic because the Immigration Act has no set-in-stone mechanism for working with unaccompanied minors and overlooks their situations in critical ways. Many foreign children lack birth certificates or passports, for instance, but these are required to receive immigration permits under the act.
(5) – The key precedent was set by Mubake and Others v. Minister of Home Affairs and Others. See Mubake and Others v. Minister of Home Affairs and Others (North Gauteng High Court, July 9, 2015).

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