Press statement: Court to rule on refugee children’s right to documentation

Lawyers for Human Rights appeared in the North Gauteng High Court on Wednesday on behalf of a number of separated minors to deal with access to education and documentation for this vulnerable group.

An interim order was granted in 2013 guaranteeing asylum seeker and refugee children access to education. The second part of the case was aimed at developing a path to documentation by recognising them as dependents of their de facto caregivers. At the moment the Refugees Act doesn’t make any provision for separated minors - something the case seeks to address.

Separated minors are children that have been separated from both parents but not necessarily from other relatives. They differ from unaccompanied minors in that they fit into the category of persons who are dependents of the adult asylum seekers they accompany. Home Affairs disputes this and wants unaccompanied and separated minors to be treated the same and follow a cumbersome enquiry process prior to accessing documentation.

Home Affairs defended the current procedure of having to approach the Children’s Court to investigate the caregivers’ familial claim before they could apply for asylum. However, the Children’s Court can do nothing to help with the temporary immigration status of a child which results in even longer delays. LHR has argued that this course is not a solution as they need to access a temporary asylum seeker permit which is required for admission into schools. This process also leads to children moving within South Africa without an immigration status, rendering them invisible to that system.

The issue is not that the Children’s Court process should be excluded but rather that documentation should take place immediately and not be dependent on any Children’s Court investigations which may proceed in the normal course.

“LHR is essentially asking the court to determine whether the word “dependant” can be read to include family members that are not their biological parents,” said LHR’s Patricia Erasmus. “South Africa’s international law obligations favour a conclusion that they be recognised as dependants of their caregivers and granted asylum permits.”

In its answering papers, Home Affairs raised concerns around the potential for trafficking should other family members be recognised as primary caregivers. LHR disputed this, saying that it was preferable to document children rather than leave them invisible while awaiting a crowded and overwhelmed Children’s Court process. The evidence showed that many caregivers had gone through serious efforts to access schooling. In cases where trafficking was suspected, nothing excluded a referral by Home Affairs for due investigation. In fact, placing children in a position of facing long and cumbersome procedures that delays them from obtaining documentation places them at a higher risk of exploitation.

Judgment has been reserved.