Parents who have contravened China's one-child policy constitute members of a particular social group for asylum purposes

In this case, the Unit represents a Chinese national who has four children. The client initially came to South Africa after fleeing persecution on the basis of his political opinion. However, in the 12 years that he has been in South Africa, the client fathered 4 children with his wife. Accordingly, should he return to China, he would face acts of persecution such as economic penalties, difficulty in finding employment; whilst his wife may be subjected to forced sterilisation and his children may be denied identity documents and education. The Department of Home Affairs in the first instance, and the Refugee Appeal Board after that, rejected his asylum application. The Board held that parents of children born in contravention of China’s one-child policy did not constitute members of a particular social group and accordingly that our client did not satisfy the definition of a refugee in terms of the Refugees Act. It is the Unit’s view that the Board made an error of law since many other jurisdictions, such as Canada and the United Kingdom, have recognised that such parents are indeed entitled to international protection under the refugee regime. The Unit has accordingly launched an application in the Pretoria High Court asking for the judicial review of both the Department of Home Affairs’ and the Refugee Appeal Board’s decisions. The Court dismissed this application on 15 November 2006. The Unit has recently assisted our client to file an application for leave to appeal directly to the Constitutional Court, and is at present waiting the Court’s directions, if any, on the further conduct of the matter.