Press Release: Undocumented learners’ right to education

SCALABRINI CENTRE EXPRESSES SOLIDARITY AND SUPPORT FOR THE CENTRE FOR CHILD LAW AND LEGAL RESOURCES CENTRE – UNDOCUMENTED CHILDREN MUST HAVE ACCESS TO EDUCATION

On Wednesday 18 and Thursday 19 September 2019, the Makanda (Grahamstown) High Court will hear arguments in a case regarding the constitutionality of legislation that the Department of Education has been using to prevent undocumented children (both South African and non-national children) from accessing education.

Scalabrini Centre wishes to express its support for our civil society colleagues in this case. We often receive complaints and queries from migrants, asylum seekers, and refugees who have experienced barriers when trying to have their children registered at a school in South Africa. The right to basic education, as enshrined in South Africa’s Bill of Rights, is inherent to a child’s dignity and to having their best interests recognised. To deny this right, simply because the child does not have a birth certificate, is an egregious infringement of that right.

Many asylum seeker and refugee families are not able to access documentation for their children. Sometimes they are refused assistance when trying to register the birth of a child here in South Africa, including being refused a birth certificate, or being refused an identity number for that child. Without access to that documentation, they experience further difficulties, including registering the child at school or accessing health care for that child. A lack of documentation is something that should not be used to discriminate against a child and deny that child the ability to thrive, regardless of where they or their family is from.

Support the Centre for Child Law and Legal Resources Centre in this case. See their websites: https://centreforchildlaw.co.za/ and http://lrc.org.za/ and follow them on Twitter (@UPChildLaw and @LRC_SouthAfrica) for press releases and updates on the case at it progresses.

About Scalabrini

Perceiving migration as an opportunity, SCCT is committed to alleviating poverty and promoting development in the Western Cape while fostering integration between migrants, refugees and South Africans. We provide different services including advocacy, welfare, employment assistance and outreach programmes. Read more at www.scalabrini.org.za.  

Whilst
Scalabrini is not directly involved in this case, it impacts on our clients.
For further information, contact Sally at sally@scalabrini.org.za


migration statistics fact 1

Migration Statistics: South Africa

insights on migration

Three insights on migration: Asha, our receptionist

The Scalabrini team works with migrants and refugees every day. With such deep expertise at hand, we take the opportunity to reflect on migration with them. This month we speak to Asha, receptionist and first face of Scalabrini, who always tells her children to do something that they love – and that is exactly what she has found here at Scalabrini. Asha’s job does not end when she leaves at the end of the day. She is constantly recognised and finds great happiness in speaking to clients inside and outside of work.

1. Migration entails much more than just the movement of people. 

The definition of human migration is the movement of people from one place to another, often over long distances, with the intention of settling. Asha used to share this view of migration. “I used to think you get to a country, you get your permit and it stops there, but it is not just about needing a safe place to live or a job. You find that and then what? Next is to give back to the community you are in.” As a child, Asha remembers lots of moving. “I was born in Rwanda, but left many years ago, from the genocide time. We didn’t know what was happening as kids, the next thing you can’t go to school because it was too bad and then the next thing you’re leaving home, we don’t know where we are going and we don’t know where we are going to end. That’s how we moved.” There are many different aspects that go along with moving and Asha’s experience as a child was very different to that of her parents. There is so much to learn about migration and Asha says she is constantly learning. Migration does not only bring challenges with it, but also opportunities to learn from each other and to broaden our mindsets. “Migration is huge and I really feel like everyone needs to get to know more, get to know each other. I believe most of us are migrants or come from migrants.”

2. Many people’s view of migration is one dimensional and only favours some. We are all migrants. 

People see cross-border migrants very differently to how they see migrants from within South Africa. “If you are in South Africa and you moved here from the Eastern Cape or you moved there from the Western Cape, you are a migrant. We are all migrants. Maybe you are lucky because you are just in your country, but I am sure that if you move somewhere and everyone speaks Sotho and Afrikaans, but you only speak Xhosa and English, you are foreign in that area even though you have your green ID book.” Asha has also seen how migrants from African countries are seen in a very different light to people coming from Europe or America. “We mustn’t see migration from one side – like thinking that if we get these certain people from certain countries our economy will grow. I might come from the States with my money, but with bad intentions. I might come from Rwanda or another African country, with no money, but with my wisdom and my knowledge.”

3. Migrants that come in search of a better life are not necessarily a threat to local people.

Most people do not choose to leave their country and their home. There are many different reasons for people migrating and it is important that we try to understand why. “Someone may be here for a better life, yes, but I am not coming to work against you.” Asha says it is important to get to know people and get to know their different challenges. “I could understand I was here because of war, but how about these other people?  I believe nobody wants to leave a place where they call home, but different challenges cause people to leave. There are advantages of being in your own community, but there are more advantages of getting involved in other communities. You learn a lot.” For example, Asha remembers her father taking time on the weekends to teach people in their community to drive. A positive cycle can be created when we work together.

Spaza: a mini-documentary

 'Spaza' explores a very special business course – one that is run by Somali shop-keepers, with an aim of countering xenophobia and expanding job opportunities for all in South Africa. Watch it here!

How can we address xenophobia in an innovative, relevant way? Abdi, Western Cape head of the Somali Association of South Africa, recognizes that Somali shop-keepers’ entrepreneurial spirit is a ‘way of life’.  At the same time, he sees that xenophobic tensions have roots in the South African economy itself. In reaction, Abdi started a Spaza Business Course, in which Somali shop-owners and South African entrepreneurs share business skills, tips and tricks of the trade.

Abdi’s vision is a South Africa where the economic potential of migrant communities is used to push the country forward and expand job opportunities for all. He uses Eastleigh, a neighborhood of Nairobi, as an example – where Somali communities have joined with local businesses to create a bustling market place, developing the entire neighborhood and drawing in traders from all over Central and Eastern Africa. By opening knowledge and sharing skills, Abdi wants to help unlock business potential. “You’ll find in many countries, there is open business market, where everyone is trading … it is possible in poorer countries, why not in South Africa?”

Watch Spaza Below!

press-release-refugee-day-2019

PRESS RELEASE: Life-changing Court Order for refugees’ spouses and children handed down, day before World Refugee Day

Today, the day before World Refugee Day, the Western Cape High Court has handed down a landmark Court Order that is set to radically improve the lives of thousands of asylum-seeking families across South Africa.

The Order, confirmed by the court following successful negotiations between the Department of Home Affairs and civil society, pertains to children and spouses of asylum seekers and refugees living in South Africa.

Wives, husbands, children and other dependents of asylum-seekers and refugees are able to document themselves in South Africa as 'dependents' of the principle asylum applicant in a process commonly known as 'family-joining'. This aspect of the Refugee Act – outlined at section 3(c) – means that refugee families can be documented together, ensuring their rights to family unity and dignity in South Africa. As refugees cannot return to their country due to conflict or persecution, maintaining a family unit that is documented together is an important part of building stability and ensuring proper refugee protection in South Africa.

However, many applicants had experienced barriers when trying to join family members in this way. Wives, husbands, children, and other dependents of asylum applicants and refugees have been left with no way to document themselves in South Africa. They have been forced into an undocumented state, placing them in a position that is vulnerable to exploitation, detention and arrest.

In reaction to this, civil society organisations Scalabrini Centre of Cape Town represented by the Refugee Rights Unit at UCT, and Advocate Suzanna Harvey, took the matter to court in 2016.

The order confirms a set of Standard Operating Procedures which have been agreed on between DHA and the applicants. As such, dependents are now able to apply to be documented as either through family joining or in om their own grounds, upon provision of certain documents, where possible, such as a marriage certificate or birth certificate – regardless of where the marriage or birth took place. Affidavits are to be submitted in the absense of such documents. This family joining is to be completed regardless of whether the dependents were included in the applicant's original asylum application or not. Should there be “serious doubts” about the validity of a parents' claim over their child, DHA can request a DNA test, which will then be assessed and possibly funded by the United Nations High Commission for Refugees (UNHCR).

Administrative nuances aside, the ultimate success of this case is that asylum-seeking and refugee families can now fulfil their right to access documentation in South Africa. With documentation, these families no longer need to fear arrest and detention, can work legally, and can enrol their children in school without administrative barriers.

For more information on this case, contact Sally Gandar (Scalabrini Centre ) on sally@scalabrini.org.za / 0214656433 or 079 171 8558 and Popo Mfubu (UCT Refugee Right’s Unit) on popo.mfubu@uct.ac.za / 021 650 5581 or +27 (83) 799-6495

Cape Town Journalists Guide to Migration

New Release: A Journalist’s Guide to Reporting on Migration

The Scalabrini Centre of Cape Town, in collaboration with African Centre for Migration & SocietySonke Gender JusticeLawyers for Human Rights and CoRMSA, has published a Journalist’s Guide to Reporting on Migration in South Africa.

Cape Town Reflections on Migration Rhoda

Three insights on migration: Rhoda, our English School Manager

The Scalabrini team works with migrants and refugees every day. With such deep expertise at hand, we take the opportunity to reflect on migration with them. This month we speak to Rhoda, manager of the English School, who finds enormous joy in being able to teach as well as learn from our clients.

1. Education can be a second chance for migrants in a new country
Rhoda did not specifically choose to work with migrants. She wants to work with a community for whom education is a second bridge in life. ‘When the first bridge is burned’, she says, ‘education helps you to build another one.’ Rhoda’s students are not the only ones that are learning. ‘I am learning, I am seeing so many different shades in my own reality,’ she describes. Being able to teach these adults helps her to redefine what teaching really is, and what it can be.

2. We must respect those who have the courage to take a new journey
Hundreds of stories have passed through the English School. For Rhoda, there was one that she will never forget. When she was still a volunteer at Scalabrini, she was filtering people into the correct classes and had to get a conversation going. ‘I looked at somebody and I said to her: ‘How did you get to Cape Town?’ She looked me in the eye, and she said: ‘I walked here’.
Rhoda admires and respects the work it takes to be a migrant. For her, the refugees and migrants that come to Scalabrini are the people that have gotten up and decided to start a journey. She says: ‘I am a worker, I respect work. And I respect someone who says: ‘Now I am going to change the present.’

3. Negative connotations around migration are misled: migration is a multi-coloured, rich picture
Rhoda is humbled by the fact that at this moment, in the beginner’s English class, there is a woman who is busy writing her doctorate. The arena that she works in is deeply diverse. ‘There is a woman who is a diplomat. There are lawyers. You name it – there is one of them in our classes. I wish that people would spell ‘migrants’, ‘refugees’, ‘foreigners’, differently.’
These words have negative connotations – and it is easy to judge that connotation, says Rhoda. She believes that you cannot blame the public for such negative connotations, because people are highly influenced by the media. But Rhoda has been given a rare opportunity: ‘I have seen so many textures in the migrant population. For me it is a rich picture. You could not really blame it on someone that they see it in monochrome.’

Three insights on migration: Jane, our Welfare Officer

The Scalabrini team works with migrants and refugees every day. With such deep expertise at hand, we take the opportunity to reflect on migration with them. This month we speak to Jane, manager of the Welfare Programme, who finds beauty in the productivity and resilience of her clients, despite the hardships they face.

1. It takes a migrant to truly understand migration
As a migrant herself, Jane understands the journeys that her clients have been through. ‘Being a migrant from another African country, I think clients feel that we can relate with them’, she says. ‘I think they feel more comfortable with me, because I understand what it means to leave your family.’

2. Working with migrants will teach you the true meaning of resilience
Although Jane’s job is to assist migrants and refugees, they too have lessons for her. ‘My clients teach me about resilience’, Jane explains. ‘They risk their lives, their families – and they don’t even know where they are going to. They just go.’ The Welfare Programme see a range of clients, from those in extremely vulnerable positions with multiple needs (such as sick, elderly and disabled clients in unstable living conditions) to those that need guidance on accessing services. The response provided by the team depends on the needs, once the client is assessed. Jane recalls a specific case that illustrates resilience. A woman approached the Welfare Programme in desperate need: she was sick, unable to speak English, and with nowhere to sleep that night. With the gradual assistance of her team, Jane watched the client bloom into the woman she is today – a successful business woman, running her own restaurant. ‘We have been on a journey with her, and she has shown us her courage and resilience.’

3. Migration is an opportunity, not a threat – and we need to shift our mindset
Having worked in the migration sector for a decade, Jane has developed expertise in working with vulnerable migrants. Simultaneously, Jane watches as the South African government restricts migration. ‘We need to start perceiving migration as an opportunity. There are so many migrants that are bringing productivity to South Africa. I see that as an opportunity, not as a threat.’ Jane appreciates the richness of migration; she sees it in her work every day. For her, harnessing the potential of migration in South Africa is a missed opportunity – that South Africa, and her people, are missing out on.

About the Welfare Programme
The Welfare Programme assists clients with various basic needs – from clothing to hospital access. The Welfare staff assess clients’ needs and finds a sustainable way to assist, encouraging the client’s independence. To find out more, or make a donation, please email jane@scalabrini.org.za, or call us on +27 (0)21 465 6433.

Cape Town Reflections on Migration Miranda

Reflections on migration: Director Miranda Madikane

For the past eleven years, Miranda Madikane has been the director of The Scalabrini Centre of Cape Town – a bustling NGO in the heart of Cape Town offering specialized services to migrants and refugees, who come from all over the African continent and Asia. She reflects on her position as director, and what the changes she has seen in Southern African migration.

1. You have a demanding job, being the director of such a busy, multi programme organization. What is your favorite aspect of your work?
Realizing how much we are actually managing to help people. Sometimes we help people in a really small way, and sometimes we manage to change people’s lives in a really significant way that’s really useful. There were times, looking back, where I remember thinking that helping a person is probably the most complicated thing that you can do, and the fact that we have the systems and the programs in place that support us in helping such high numbers of people on a daily basis is amazing. The amount of thanks and gratitude that we get from our clients makes me know that our work is valuable.

2. What is the most challenging aspect of your position?
I think it’s the crazy pressure, and the fact that no two days are alike. In some ways, you never know what you’re going to be smacked with. We’re an extremely responsive organization, so that means we are really hit by external events, which can be crazy because it adds a huge amount of pressure to daily work. On the other side, I’ve got the joy of being challenged on a spiritual level, on an ethics level, on an emotional level, on an intellectual level, on a physical level, so I think that’s really fulfilling. I often say to my team that we work as hard as any corporate, that we are under as much pressure as the corporate, but our goal isn’t profit, it’s change.

3. You work with issues of migration every day. What makes you so passionate about this topic?
Having now worked for so many years with migrants and refugees and asylum seekers, and having a legal framework that is one of the best in the world for protection, seeing how that plays out to support our clients when implemented properly is incredible. It feels so nice to be backed by a framework that supports the dignity and freedom and healing of clients in a way that allows them to control their own destinies.
It’s so important for us to have that legal framework, though, one that offers a route to neighboring countries and access to economic opportunities of the country. Such incredible productivity comes from the economic migrant. Their aspirations and their dreams and their energies are so positive for the country, plus, they bring new perspective! They bring new cultures, new songs, new hairstyles. These may be nuanced and perhaps not so tangible contributions, but they add to the flow. So I think migration, properly managed, can be so positive in our context and I feel like it’s wasted.

4. From your perspective, has migration to South Africa changed in nature over the last few years? If so, what kind of changes are we witnessing?
There’s been a shift from the management of migration being designed to support the vulnerable and those fleeing persecution. The government was not prepared to accept economic migrants into the country, and that’s what happened. There wasn’t a parallel system for immigration vs. protection, and as a result, people started using the refugee system to gain access to work permits. So the consequence of that was that home affairs was completely overwhelmed by numbers, and could never, ever manage individual status determinations for each and every single person who came. But instead of then opening up a system that allowed for economic migrants or migrants of aspiration, the government has chosen to tighten and reduce the protection space for all refugees and asylum seekers. And the sadness there is that those who are in real need of protection are finding it more and more difficult to access.

“We’re definitely seeing more women, and I think that’s in line with what’s happening on a macro level – more women migrating for economic reasons, and for protection.”

5. What kind of changes in client profile have we seen in the last few years?

We’re definitely seeing more women, and I think that’s in line with what’s happening on a macro level – more women migrating for economic reasons, and for protection. There’s also a big difference, of course, in access to documentation; we are supporting higher numbers of undocumented individuals. In 2012, 1% of the entire organization’s clients were undocumented. Now, it’s more like 24%. So it’s a massive shift, which of course reflects the reality of the closing of the space, the protection of the space.

6. How does Scalabrini react to these kinds of changes?

The increase in women saw the rise of the women’s platform, and it’s affected our strategic direction. I mean, we are very conscious of the rise of the undocumented, and that is something we constantly advocate around. As an organization we have to be extremely careful. We’re allowed to offer humanitarian aid, so you’ll see that in the employment access programme, you have to be documented to gain access to services. Otherwise it would be aiding and abetting an irregular migrant in accessing work. Our welfare desk is allowed to assist undocumented, because they are offering humanitarian aid. The advocacy programme speaks to undocumented, and if they have claim, gives them due process to approach an RRO. Our undocumented clients who have no claim, though, are normally told that the only way to legalize their stay in South Africa is to return to their home country and to make application in that way.

7. Has the way that the South African government approaches migration changed over the last few years?
The South African government’s method of dealing with migration has shifted from a social to a security approach. South Africa sprang from a place where many of us had been refugees in exile from the apartheid regime, and it was based on the knowledge of what that meant to be in exile and to be running from your state that this beautiful refugee act was formed.

I think the issue arose from the lack of resources and structure to support high numbers of refugee and asylum seekers coming into the system. The government’s knee-jerk reaction was to blame the migrant, so the asylum seeker and the refugee were demonized, instead of actually seeing that their failure is in lack of structure.

8. Looking to the future, how do you think migration to South Africa might change in the coming years? Are there things to be concerned about, and things to be excited about?
One of the big positive factors in the white papers is the introduction of the South African visa regime, which allows migrants from our region access to low-skilled work permits, cross-border informal trade permits, and small business enterprise permits. So that’s really exciting because it means that people can come in not on a pretense, but come in for the reason that they’re here and it’ll make it slightly easier for them. It also means that the circular migration will be much easier to achieve, and I think therefore the joining of South Africa to the rest of Africa will become much realer. And then, who knows? Maybe South Africans will say, “hey, maybe there’s opportunity for me in Kinshasa,” and you’ll see South Africans looking more broadly at opportunities and gaps in the market that are definitely there in the rest of the region.

The negatives are obviously the move to the border, the closure of the RRO’s , the refusal of Home Affairs to obey court orders, the blaming of the refugee and asylum seeker for their management. I mean essentially, it is their duty to control the decision-making of the RSDO’s and while I have sympathy for the numbers, I don’t believe that there’s any sincerity in their attempt to properly manage it. Those are all negatives, and what we see with, what they call the securitization approach or the externalization approach, is the criminalization of the migrant. At the moment, it’s a criminal offense to assist an irregular migrant but not a criminal offense to be an irregular migrant (it’s an administrative offense) but I think with this new approach, that will change. So you’ve got your individual person who decided to dream a dream becoming a criminal.

9. Migration is such a hot topic in South Africa. Is there a specific mind-shift that you think would be beneficial to our future as a country?
Right now, the government is looking at what’s happening in the rest of the world and tried to align themselves with a lot of first-world countries where there is a growth in populism, where migration is used for fear, where security is touted as the way to properly manage migration, where a lot of externalization is happening; you can see in Australia, and now in Europe, people are being held out of the borders of the places where they’re seeking asylum. So, that’s essentially what South Africa has been mirroring since about 2011-2012, and now it’s reaching its pinnacle with regulations for amendment coming in and the white papers clearly stating that they’re hoping to externalize.

I feel that the security of the nation lies in data that has integrity. So if you know what the movement of people is, and you know where they come from, and why they’re here, that, for me, offers protection. Not trying to build a wall that stops migration from coming through, because migration is like water. And you can’t really stop the flow of water, so you won’t stop the flow of migrants. With migration, we’re talking about the movement of people, but the migrant is a person.

“With migration, we’re talking about the movement of people, but the migrant is a person.”

Cape Town Citizenship Act Judgement Michelle

Citizenship Act Judgement: What it means for Michelle

Yesterday’s Supreme Court judgement on the interpretation of South Africa’s Citizenship Act could result in a swathe of young people – those born and raised in South Africa with foreign parents – being able to apply to citizenship. We speak to Michelle,* who is hopeful that she can finally be recognized in South Africa, the only country she has ever known.

scalabrini Centre of cape town What it means for michelle

Upon meeting her, Michelle ‘seems South African’. Born and raised in Cape Town, Michelle went through South African primary and secondary school where she ‘learnt about our history and did everything South African learners do’. She later enrolled to study teaching at Stellenbosch University. But her university career was cut short in her second year when her documentation became an issue, rendering her ‘illegal’ in the only country she’s ever known. Now, at the age of 23, Michelle’s hopes have been raised by a recent Supreme Court Judgement on citizenship law in South Africa.

Stateless in South Africa

Michelle’s parents fled to South Africa from Angola in 1992. Having never had issues with documentation and using her South African birth certificate for schooling purposes, Michelle describes how she ‘felt truly South African’. In 2013, the South African government withdrew all Angolans’ refugee statuses. Michelle and her family were left undocumented as the Angolan authorities did not recognize them to be Angolan.
Suddenly, without documentation, Michelle had to drop out of her existence in South Africa. ‘I had to leave Stellenbosch University. All of my friends started graduating, finding jobs, moving on. I could not do anything – I was at home and I couldn’t find jobs or contribute to my household. I felt completely lost.’

Changes in Citizenship Law

In 2013, the South African Citizenship Act was amended to allow children born in South Africa – regardless of their parents’ nationality – to apply for South African citizenship upon turning eighteen. The applicant would have to provide a birth certificate, and prove that they had remained in South Africa during their life. ‘I kept googling this Citizenship Act,’ explains Michelle. ‘It spoke to me because it said, if you are born in South Africa to non-South African parents and you turn eighteen you can apply for South African citizenship.’ However, Michelle was not able to apply for South African citizenship, because the Department of Home Affairs claimed that this provision of the amended citizenship law was only applicable to those born after the change in law. In other words, only children turning eighteen in 2031 would be able to apply for South African citizenship through this new provision. Upon discovering this, Michelle’s hopes to legalize herself were dashed. ‘I was filled with anxiety because I could not see my future. I still had no way of proving my own identity.’

Cape Town Citizenship Act Judgement What it means for Michelle

Challenging citizenship in court

In 2017, the Legal Resources Centre approached the Western Cape High Court, requesting confirmation that the relevant provisions of the Citizenship Act be applied to those turning eighteen after 2013 in South Africa. The Legal Resources Centre argued that the refusal to consider their citizenship application infringed on their constitutional entitlements – and by disallowing citizenship, the Department of Home Affairs was forcing them to be non-citizens in the only country they had only ever known.
In September 2017, the Western Cape High Court handed down a judgement affirming that those born to foreigners in South Africa, who turned eighteen after 2013, should indeed be able to apply for South African citizenship. However, the Department of Home Affairs appealed the decision. To Michelle, the news of Home Affairs appealing the decision ‘felt like a punch backwards’.

Just over a year later, the matter was heard in the Supreme Court of Appeal. On 30 November 2018, it was ruled that those born in South Africa before 2013 be able to apply for South African citizenship. The Department of Home Affairs has been ordered to make regulations and provisions so that applicable individuals are able to apply. In making this judgement, the Supreme Court noted that ‘it is not in the interest of justice and neither is it just and equitable to send the respondents from pillar to post simply because the Minister has adopted a supine attitude that the regulations will only be promulgated in due course.’ The Legal Resources Centre has welcomed the judgement ‘which confirms the rights of our clients to nationality and ensure that they are not to be rendered stateless through restrictive interpretation of nationality laws.’

‘This judgement will change my life forever’

Michelle is ecstatic. ‘If this judgment is realized, it will change my life completely. I will be able to do what every normal person does and pursue my dreams. I also am excited about small things, like opening a bank account, and not hiding my money under my mattress anymore.’ If the judgement is unchallenged and implemented, Michelle could apply to be a South African. This change would mean Michelle going from a stateless person to a South African. ‘If I had an ID book in my hands, I would feel alive, not invisible. I would feel like I matter and I am equal. I want someone at the school, library or airport to look at my ID book and say, ‘Oh Welcome, Michelle Ntumba!’

Citizenship Act Judgement What it means for Michelle

*Names are changed to protect identities.