A report by Marilize Ackermann September This report is available on: for copy:

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1 Unaccompanied and Separated Foreign Children in the Western Cape, South Africa: Exploring (the lack of) durable solutions for children in informal relations of care A report by Marilize Ackermann September 2017 This report is available on: for copy: communications@scalabrini.org.za

2 Contents Unaccompanied and Separated Children in South Africa By Marilize Ackermann 1 I. Introduction... 6 II. Methodology... 6 III. Key findings... 6 IV. Terminology: Unaccompanied and separated children... 7 V. The customary duty of care in the context of migration... 8 VI. Research findings Profile of children and caregivers Accompanied/Unaccompanied/Separated children Age, gender and disability Countries of origin Documentation status of children Profile of caregivers Migration Length of stay Reasons for migration The border crossing Reflection on the regularity of entry The child s ability to regularize stay after admission to South Africa Refugee children independent claims to asylum Access to basic rights The right to a name and nationality Birth registration as a pathway to nationality Marilize Ackermann (LLB, LLM) is an Advocacy Officer at the Scalabrini Centre of Cape Town 1

3 4.1.2 Birth registration of foreign children in South Africa Birth registration of abandoned or orphaned children Access to education Access to child protection services Formalized relations of care Legal guardianship over foreign children Access to health care Statelessness Smuggling v trafficking A reflection on durable solutions available to foreign children VII. Conclusion VIII. Recommendations IX. Bibliography Acknowledgments Thank you to Miranda Madikane of the Scalabrini Centre of Cape Town, who made this study possible. Special thanks to Corey Johnson, Sindisiwe Moyo, Lotte Manicom, Matipa Ndoro and Azille Coetzee for their valuable contributions. Lastly, thanks to all the participants for sharing their stories and experiences. All photos in this report are credited to Nicky Newman. They form part of her series, Women at Work. Published by the Scalabrini Centre in Cape Town (SCCT) Copyright the Scalabrini Centre, 2017 All rights reserved 2

4 Executive Summary Despite recent legislative amendments aimed at stricter regulation of immigration to South Africa, porous borders and high levels of corruption by immigration officers make entry to South Africa by undocumented migrants, including migrant children, relatively easy. Once in South Africa, no mechanism exists for the identification or registration of undocumented migrant children. Further, due to legislative restrictions the births of children born to undocumented foreign parents in South Africa are not recorded. This means that the presence of unaccompanied and separated children in the Republic goes mostly unnoticed, regardless of their place of birth. The migration framework (comprising of the Refugees Act No. 130 of 1998 and the Immigration Act No. 13 of 2002) allows for children to derive documentation from a biological parent or a legal guardian. In the absence of a parent or guardian, unaccompanied and separated children have no pathway to derivative status. The Refugees Act allows for an unaccompanied child who appears to qualify for refugee status, to claim asylum through the intervention of the Children s Court. However, this only applies to unaccompanied children who are found in circumstances indicating a need for care and protection and does not speak to separated children who are cared for by relatives. It further assumes that all unaccompanied children reach a social worker, and it places statutory duties on social workers which the latter are often not aware of. The findings show that unaccompanied refugee children fail to meet the requirements set for an assisted independent asylum application. Independent documentation options under the Immigration Act are equally unattainable to unaccompanied and separated children. The evidence shows that the inability to secure documentation in South Africa results in restricted access to basic rights such as education, nationality and the child protection system. In practice, broad restrictions of basic rights aim to deter irregular migration and effectively function as a form of migration management. This is concerning, given that these Constitutional rights extend to everyone and the application of the Children s Act No. 38 of 2005 should not be limited by nationality. Under the present framework, identity documentation is not considered a component of child protection yet, protection cannot be fully realized without documentation. This is a major gap in the child protection framework and restricts access to the recommended durable solutions. The absence of accessible documentation options available to unaccompanied and separated children means that successful local integration is nearly impossible to achieve. Despite this reality, little effort is being made by service providers to explore reunification of families across borders. As the child approaches majority, it becomes apparent that 3

5 the few pathways to documentation require significant financial support or legal intervention, leading the individual to consider returning to the country of origin as the only remaining option. The alternative to securing documentation, is living a precarious life outside of all formal societal and legislative structures. As defined under the Immigration Act, an illegal foreigner is virtually stripped of all rights as he or she does not have legal stay. In a society where access to human rights and public services pivot around the possession of an identification document, the result of not having valid documentation equals exclusion from education, the formal labour market, health care services, marriage and social support. It removes an individual s ability to enter into private contractual arrangements such as renting an apartment or buying a mobile phone, to open and administer a bank account, to obtain a driver s license, to file a criminal investigation with the police, and to inherit thereby removing freedom, independence and economic agency. In South Africa, an ID is required to enter a homeless shelter and to borrow a book from a public library. The lack of a birth certificate, and therefore the inability to secure an ID document, limits a person s freedom of movement as he or she would not be able to obtain a passport. The inability to prove age and identity puts a child at risk of unlawful detention, destitution, abuse and exploitation. Were the individual without an ID document eventually to give birth to his or her own children, the cycle of disempowerment will be perpetuated as the undocumented parent cannot register the child s birth. Supported by the evidence, some of the primary recommendations of the study revolve around the unaccompanied and separated child s ability to access documentation which would adequately identify the child, and regularize his or her stay thereby allowing access to basic rights, whilst longer-term solutions can be actively explored. The emphasis is on the implementation and strengthening of mechanisms provided for under the existing legal framework. One of the most important ways in which to achieve the holistic protection of foreign children is to open channels of communication and the flow of information between relevant State departments and eventually, with service providers in the main sending countries. 4

6 I Introduction According to a Community Survey undertaken by Stats SA (2017), an estimated foreign nationals were present in South Africa at the end of At the same time, the total South African population was estimated at , meaning that non-citizens represented approximately 2,8% of the populace. 2 Disaggregated statistics suggest that of foreign nationals were below 19 years of age. The exact numbers of foreign, undocumented minors who are living in South Africa and who continue to cross borders, however, are unknown. No mechanism exists for the identification or registration of undocumented migrant children admitted to the territory. Due to legislative restrictions, the births of children born to undocumented migrant parents in South Africa are not recorded. The Scalabrini Centre of Cape Town (SCCT) is a registered not-for-profit organisation that perceives migration as an opportunity and is committed to alleviating poverty and promoting development in the Western Cape while fostering integration between migrants, refugees, and South Africans. 3 In providing assistance, SCCT advocates respect for human rights and utilises a holistic approach that considers all basic needs including advocacy, development, and welfare services. The advocacy programme functions as a walk-in paralegal office, and as such, we receive persons who present problems around access to basic rights, including the rights of migrant- and foreign children. Through SCCT s work with asylum seekers and refugees, it became apparent that undocumented children who have been separated from their parents, face pronounced challenges to access their basic rights. This is a direct result of the inability to access documentation to adequately identify them and to regularize their stay in South Africa. In 2015, the SCCT conducted a survey of Child and Youth Care Centres (CYCCs) in the Western Cape Province to map and quantify the cases of foreign children placed in institutional care, as such data is not captured by the Provincial or National government. Our objective was to identify the problems faced by foreign children in care as well as the service providers, to inform solutions and an advocacy strategy. It allowed SCCT to intervene on behalf of the most vulnerable individuals. 4 The survey was later duplicated in CYCCs throughout Gauteng and Limpopo provinces. 5 These studies allowed in-depth insight into the situation of foreign children in care in South Africa and strengthened the dialogue around this issue. It was observed, however, that unaccompanied and separated children who do not access the child protection system are particularly vulnerable, as they do not have the support of a social worker and there is no oversight into their situations. All children fall under the ambit of the Children s Act and in principle, any foreign child who is not in the care of parent(s), should be able to access the child protection system following an assessment by a designated social worker and the Children s Court. However findings show, that this group is frequently excluded from accessing the child protection system. Despite international and national obligations to find durable solutions for separated or unaccompanied migrant children, steps towards this are not taken systematically, nor is it clear who should pursue these solutions or how. Another main concern is poor access to education by unaccompanied and separated children. These observations lead to the present study, in which we aim to identify, through qualitative examples, the challenges experienced by unaccompanied and separated children and the gaps in the child protection system as it pertains to such children. We hope that an understanding of these points will inform solutions to address some of the main issues. 2 Cronje, F, and Ndebele, T South Africa Survey 2017, p The center is registered with the South African Department of Social Development as a non-profit organization ( NPO), as a youth and child care center (C6887) and as a Public Benefit Organization with the South African Revenue Services ( ) and governed by a Trust (IT2746/2006) 4 Sloth-Nielsen, J. & Ackermann, M Foreign children in care in the Western Cape Province 5 Foreign children in care in Gauteng and Limpopo Provinces, Forthcoming

7 II Methodology The methodology comprises of a desktop review of the available literature on the subject, a critical analysis of the applicable law and policy, and the collection and analysis of qualitative data. The participants in this research project are the individual caregivers of Unaccompanied and Separated Children who sought advice at the office of SCCT on a voluntary basis and the research in this report is based on the individual cases of the children in their care. A total number of 109 surveys were collected over a two-year period, from May 2015 to May In 21 cases, more than one child was in the care of one particular caregiver and one child (17 years old) was without an adult caregiver. Data was collected through a semi-structured interview with adult caregivers and the data collected is essentially the case-intake information presented by the caregiver. Over the course of two years, SCCT was able to track the evolution of individual cases towards the end of the research period. Participation with the research project was entirely voluntary and information was recorded in a manner which protects the anonymity of individuals. The Do-No-Harm Principle underlies the entire process. A condition to participation is that information identifying the participant or the child will not be published, and where used, is redacted. All cases encountered were referred to the Department of Social Development (DSD) for assessment by a statutory social worker. III Key Findings Of the cases of 109 foreign children, 97 were migrant children and 12 were born in South Africa to foreign parents. Of 109, 92 children could be defined as separated minors and 17 were unaccompanied minors. The children were in the care of 87 individual caregivers, meaning some caregivers looked after more than one child. The application of definitions unaccompanied and separated (see section IV below) is fluid and shifts between the moment of entry and subsequent stay. This is evidenced by the fact that 19 migrant children entered South Africa accompanied by a parent, but were later separated. Fifty-four children crossed the border unaccompanied, but later joined a relative who takes care of them. All children originated from African nations. Only one migrant child entered South Africa at an airport, the others entered through land borders. Only three of the migrant children entered South Africa regularly - using a passport and visitor s visa to gain entry. The remaining 94 children were undocumented upon entry. This finding indicates poor implementation of legislation aimed at protecting migrant children at borders. No registration mechanism exists to record the presence of unaccompanied and separated children in the Republic, nor is a document issued to identify such children. Unaccompanied or separated children crossed borders easily without their parents and without having any form of identification documentation. Reasons for migration or for joining a relative in South Africa were identified as follows: conflict (44%); death of the primary caregiver in the country of origin (21%); socio/economic reasons (22%); abandonment in the country of origin (4%). It was found that it is extremely challenging for unaccompanied and separated children to secure documentation. Twenty-one of the children secured documentation to regularize their stay in South Africa after their arrival - 19 of whom were documented under the Refugees Act and two under the Immigration Act. 6

8 - The majority of children documented under the Refugees Act had derived status from a parent or caregiver, sometimes, in manners inconsistent with the Act. - The two children who secured documentation were able to do so either with the intervention of the High Court or substantial financial support. Unaccompanied refugee children struggle to access the asylum system and failed to meet the legislative requirements imposed by the Refugees Act. 55% of the children lacked a birth certificate. No mechanism exists to register or verify the circumstances of informal caregivers. Fourteen of the children were formally placed in foster care through an order of the Children s Court. 57% of the cases did not reach a social worker at all. No referrals to social services were made upon admission to South Africa, but followed later on during the child s stay. Cases of unaccompanied children are not detected upon entry nor automatically referred to a social worker. The eligibility of a caregiver to formalize the relation of care is determined by the documentation status of the caregiver and not purely based on the best interest principle. Legal guardianship of foreign children is not available to non-citizen caregivers instead, such applications are treated as inter-country adoptions. A child born in South Africa to an undocumented mother is excluded from birth registration. 21% of the children were considered to be at risk of statelessness. Legislation and policies around the right of undocumented children to access education is conflicting, resulting in poor levels of school attendance amongst the group. 40% of the children were not accessing their right to education, over half of whom reported that the lack of documentation prevented children from school enrolment. Fourteen of the children who did not attend school were under the age of 15 despite school attendance being compulsory below this age. 27% of the children had at some point needed health care services, and were generally able to access the required medical attention. Family reunification in the country of origin or alternative care in the country of origin is not pursued by social workers as a durable solution. Successful local integration is nearly impossible to access as a result of the inability of unaccompanied and separated children to secure documentation. IV Terminology: Unaccompanied and Separated Children General Comment No. 6 of the UN Convention on the Rights of the Child (UN CRC) defines unaccompanied children (also called unaccompanied minors ) as children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so. It goes on to define separated children as children who have been separated from both parents, or from their previous legal or customary primary care-giver, but not necessarily from other relatives. These may therefore include children accompanied by adult family members other than parents. 6 6 UN Committee on the Rights of the Child, General Comment No. 6 (2005) Treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, paragraphs 7 & 8. 7

9 The relevance of defining a child as unaccompanied or separated is two-fold it pertains to child protection and immigration. 7 In the South African context, being categorized as an unaccompanied minor has bearing on a foreign child s admission to the Republic and the ability to legalize immigration status subsequent to entry. In the context of border control, the Immigration Regulations narrowly define an unaccompanied child as a child under the age of 18 years who travels alone. 8 With regard to child protection, DSD Guidelines assume greater vulnerability of unaccompanied children and this distinction impacts on the ability of the child to access child protection services. The definition of unaccompanied minor as applied by the UN CRC is much broader than that of the Immigration Act. The UN CRC definition concerns not only the time of entry, but implies a continuation of stay beyond admission to the country. The relevance of categorizing children in this way has to do with the continued care, welfare and protection of the child beyond entry. The study includes children born to foreign parents within South Africa. Birth in South Africa does not automatically confer nationality. A child born to two foreign residents is considered, upon birth, as a non-citizen. 9 Such children are obliged to regularize their stay in South Africa in the same manner as migrant children. Therefore, if separated from the parent(s) for any reason, the foreign child born in South Africa would encounter the same challenges as the foreign migrant child in accessing documentation and therefore, their rights. V The customary duty of care in the context of migration Customary care is widely practiced in the South African and the broader African context. Foster care and adoption is provided for in local customary law, 10 but customary duty of care as a concept is largely applied in an informal manner. In brief, customary care or kinship care refers to family-based care within the child s extended family or with close friends of the family known to the child, whether formal or informal in nature. 11 The terms customary care and kinship care are not formally defined in South African law and there are no particular mechanisms through which parental duties of care are transferred to the customary caregiver. Furthermore, customary law may differ from one country to the next and South African customary law will not necessarily be observed by foreign caregivers and children. Whether a customary duty of care exists is determined by social or cultural norms and often, a highly subjective sense of responsibility which an individual caregiver may feel towards a child. The evidence suggests that the customary duty of care may be fluid and shift between relatives of the child depending on domestic, social, financial or other circumstances. Informal kinship care arrangements exist through private arrangement, while formal care refers to a care-arrangement ordered by a competent administrative body or judicial authority. 12 Informal care by relatives is considered the most common alternative to parental care, especially in Africa where child rearing is often regarded as a 7 Annex II of the UNHCR (1997) Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum suggests that this classification is not always clear and provides guidance as to how to determine whether a child is unaccompanied. 8 Section 1 of the Immigration Act No. 13 of Manby, B Statelessness in Southern Africa, Briefing paper for UNHCR Regional Conference on Statelessness in Southern Africa, p Martin, P. & Mbambo, B An exploratory study on the interplay between African customary law and practice and children s protection rights in South Africa, Save the Children, p UN General Assembly, Guidelines for the Alternative Care of Children: resolution / adopted by the General Assembly, 24 February 2010, A/RES/64/142, paragraph 29(c)(i) 12 The Guidelines for the Alternative Care of Children: resolution / adopted by the General Assembly in paragraph 29(b)(i) & (ii) defines these terms. (i) Informal care: any private arrangement provided in a family environment, whereby the child is looked after on an ongoing or indefinite basis by relatives or friends (informal kinship care) or by others in their individual capacity, at the initiative of the child, his/her parents or other person without this arrangement having been ordered by an administrative or judicial authority or a duly accredited body. (ii) Formal care: all care provided in a family environment which has been ordered by a competent administrative body or judicial authority, and all care provided in a residential environment, including in private facilities, whether or not as a result of administrative or judicial measures 8

10 communal responsibility. Yet, this form of care is not verified, recorded, monitored or supported in any manner. 13 None of the caregivers who participated in the survey had been formally appointed to do so by an administrative body in their respective countries of origin. Customary care arrangements may be formalized through foster care placement, but this is not done systematically and a need for care and protection is required as a standard condition for formal placement. In the context of the HIV epidemic, the question of whether orphaned children living with relatives should be placed in foster care with them was raised before the courts in In SS v the Presiding Officer, Children's Court, Krugersdorp and Others 2012 (6) SA 45 (GSJ) the court confirmed that a component of the need for care and protection under Section 150 of the Children s Act is that the child should be without visible means of support. It was held that children living with relatives are not necessarily in need of care and protection or without visible means of support. 14 In the judgment, the court listed a number of family relations who could incur the common law duty to support in relation to a child. Interestingly, this list excluded aunts and uncles. 15 become pertinent only with reference to the particularities of a child s circumstances. In the context of migration, it must be noted that a customary duty of care does not confer an immigration status or nationality, nor does foster care placement. Therefore, references to duties of care do not have bearing on the documentation status of the child, and are uniquely concerned with the well-being or protection of the child. Informal customary caregivers are not eligible for social grants. Section 1 of the Children s Act provides a broader indication of who may exercise a duty of care by defining a child s family member to include: Any other person who has parental responsibilities and rights in respect of the child; A grandparent, brother, sister, uncle, aunt or cousin of the child, or any other person with whom the child has developed a significant relationship based on psychological or emotional attachment, which resembles a family relationship. Identifying family in relation to a child is therefore based on key characteristics such as parenthood (natural or adoptive) and blood relationship; acquisition of parental responsibility in respect of the child, and significant relationship, akin to a family relationship resulting from psychological and emotional attachment. 16 Yet, these relationships carry no particular duty of care as such and 13 Save the Children Kinship Care, p SS v Presiding Officer, Children's Court, Krugersdorp and Others 2012 (6) SA 45 (GSJ) 15 Breen, N. Johannesburg Child Welfare, March 2015, Policy Brief: Foster Care in South Africa: Where To From Here? 16 Certification of the RSA (1996) 10 BCLR 1253 (CC) 9

11 VI Research Findings 1. Profile of children and caregivers In what follows, the research findings are set out in detail, accompanied, where relevant, with excerpts from specific case studies, as well as tables and figures visually representing the data. children, 19 were accompanied by one or both parents upon entry to South Africa, but subsequently separated. On the other hand, 54 children were unaccompanied upon entry but joined a relative later on. The 12 children born in South Africa became separated or unaccompanied after abandonment, death of the parent or destitution of the parent. This illustrates the fluidity of the definition unaccompanied or separated in the context of migration. 1.1: Unaccompanied and separated children Of the 109 children who took part in this research, 92 were in the care of a relative other than a parent or primary caregiver and could therefore be described as separated. Seventeen of the children were considered unaccompanied, as they were in the care of persons unrelated to them, and previously unknown to them. Accompanied by one or both parents (19) Accompanied by a relative/person known to child (24) Unaccompanied (54) 24 Classification as per UN CRC definition Separated 92 Unaccompanied 17 TOTAL As set out below, the persons caring for the children were mostly relatives or persons known to the child. Relation of caregiver to child Aunt 34 Uncle 19 Brother 4 Sister 15 Cousin 6 Grandfather 3 Grandmother 7 Great aunt 1 Unrelated friend of the family 3 Unrelated and previously unknown to the child 16 No caregiver 1 TOTAL : Age, Gender and Disability 54% of the children are female and 46% are male. At the end of the research period the majority of children (57) were aged between years, 12 children between six and ten years of age and only three children between zero and five years. School attendance is compulsory for children under the age of 15, and the age group is critical, as this is the time when the child should secure documentation to prepare him- or herself for an independent life. Ten individuals were aged years, and represent the group who had turned 18 since the earliest surveys were conducted. None of the children of the cases surveyed were disabled. Twelve of the children were born in South Africa to foreign parents. Therefore 97 of the children had migrated to South Africa. Of the 97 migrant 10

12 Over 18 s The fate of the group of over 18s is varied and although the group is small, a true reflection of the choices available to undocumented children as they reach majority. Of the ten children who had turned 18, five remained with their caregivers and were living in South Africa as undocumented adults. All five had spent more than 11 years in South Africa without securing documentation. In an effort to avoid illegality, one had returned to the country of his parents origin, despite being born in South Africa and never having been to the particular country before. The undocumented adults all said that they were unable to pursue further education or work opportunities, and they remain financially dependent on their caregivers. One acquired a passport and study visa. The remaining individuals could not be reached and it is unknown whether they are still in the Republic. 1.3: Countries of Origin The table below sets out the countries of birth in the first column, and the countries of nationality of the children s parents (or mothers in the case of mixed parentage) in the second. The second column incorporates the countries of origin of the parents of children born in South Africa. Six children originated from mixed-national parents. Country of birth Nationality of parent(s) Angola 3 4 Burundi DRC Malawi - 1 Rwanda 4 5 South Africa 12 0 Somalia Tanzania 3 0 Uganda 1 1 Zimbabwe 3 4 Zambia - 1 TOTAL : Documentation status of children Experts in the field of children s rights describe the documentation options available to unaccompanied and separated children as elusive. 17 At the end of the research period, 21 of the children (19%) managed to secure documentation to regularize their stay in South Africa. Nineteen children held documents issued under the Refugees Act, 15 (17%) of whom had derived asylum seeker status or refugee status under Section 3(c) of the Refugees Act. Of the 15 children who held derivative status, 11 had derived such status from a parent, one from a foster parent, one from an aunt, one from a cousin and the other from an unknown principal applicant. The ability of separated children to have derived status from a person other than a parent illustrates inconsistent application of Section 3(c), discussed in more detail under the section Refugee children independent claims to asylum in this document, below. Few of the permits remained valid. Documentation status of children Derived Asylum Seeker Status (7) Derived Refugee Status (8) 8 Assisted Asylum Seeker (Social worker) (1) Independent Asylum seeker (Unassisted) (3) Study visa (valid) (1) Permanent residency through exemption (1) 7 17 Skelton, A. & Ngidi, K Unaccompanied Foreign Migrant Children in South Africa - Policy Brief, PAN: Children 11

13 Four unaccompanied children approached a Refugee Reception Office (RRO) alone, two of whom were issued with asylum seeker permits and were referred to DSD in accordance with Section 32 of the Refugees Act. Whilst the RRO was procedurally correct in its approach to the minor asylum seekers, there is no actual contact between DHA and DSD to alert a social worker of the case, to ensure that the correct social worker is approached, or to ensure that the social worker knows what to do. Nor is there any follow up on whether the child had actually gone to a social worker. The third child pretended to be over 18 years of age in order to access the system. The fourth was assisted by a social worker stating to authorities the child s nationality as Mozambican instead of Rwandan, which resulted in the claim not being duly considered by the RRO. All four permits had expired. None of the children had thus far met the requirement to produce a court order and could not continue their attempt to claim asylum. Two children regularized their stay by securing documentation under the Immigration Act. One was assisted by his uncle to apply for a study visa from the DRC. The second child was granted permanent residency under Section 31(2) (b) of the Immigration Act. Her foster parents had to engage in High Court litigation over a two-year period to achieve this status. This exercise is extremely lengthy and costly as it requires the intervention of an attorney and two advocates. It is clear from these examples that documentation to regularize stay is not easily obtained or retained by unaccompanied and separated children. The ability to regularize stay is a major challenge. 1.5: Profile of caregivers The majority of the caregivers were female, comprising 76% of the group. Age groups of caregivers ranged from 20 to 69 years old, with the largest number falling in the age group of years. Fourteen of the children were formally placed in foster care. Of the foster parents, six were relatives and eight were unrelated South African citizens. None of the caregivers were court appointed legal guardians. Most of the caregivers held refugee status (47) followed by asylum seeker status (22), citizenship (7) and permanent residency (4). The documentation status of the caregiver is crucial in determining the possible documentation available to the child in his or her care. South African citizenship is not derived through customary care or foster care, and can only be conferred through adoption. 18 Refugee status and asylum seeker status are derivative under Section 3(c), but is only available to biological children of the principal applicant. Six caregivers were undocumented, meaning that no formal care relation is possible, nor any form of derivative status. Documentation status of caregivers South African citizen 8 Permanent resident 4 Recognized refugee 47 Asylum seeker 22 Undocumented 6 TOTAL 87 The child s ability to access child protection services is also determined by the caregiver s documentation status. Only recognized refugees, permanent residents and South African citizens are eligible foster parents, and all categories qualify for the foster care grant. 19 It is interesting to note that 18 Section 3 of the South African Citizenship Act No.88 of 1995 (as amended) provides for citizenship through descent to any person who is adopted by a South African citizen as per the Children s Act, on the condition that his or her birth was duly registered. 19 In terms of Khosa v Minister of Social Development, Mahuale v Minister of Social Development 2004 (6) SA 505 (CC), refugees are allowed to claim foster grants. In terms of Minister for Welfare and Population Development v Fitzpatrick [2002] 7 BCLR 713 (CC) permanent residents are eligible foster parents. Section 7 of the Social Assistance Act No. 13 of 2004 renders a foster parent eligible for a foster child grant for the child concerned if the child is placed in his or her custody in terms of the Child Care Act of 1983 (repealed by the Children s Act); that the child remains in his or her custody and that the foster parent is a South African Citizen, a permanent resident or a refugee. 12

14 only five of the children were placed in the foster care of their refugee caregivers, although 47 in total were cared for by caregivers with refugee status. Asylum seekers are not considered eligible foster parents, given the temporary nature of asylum seeker status. Twenty-two children were cared for by primary caregivers with asylum seeker status. Undocumented caregivers are not eligible to formally care for children. Documentation status of foster parents Refugee 5 Citizen 6 Permanent residency 3 TOTAL 14 It is argued that excluding children from the foster care system purely based on the documentation status of the caregiver is not consistent with the best interest principle. Placement with an asylum seeker may, in some cases, be in the best interest of a particular child and formal care could be feasible - especially in light of the slow asylum process. It has been documented that asylum seekers may wait up to 18 years for the administration of their claims. 20 If a child is placed in the foster care of a person that might leave the Republic, the child should be allowed to leave with the caregiver with the necessary acknowledgment from the courts. As a recommendation, it is submitted that asylum seekers should be eligible foster parents, if this is in the best interest of the child without necessarily qualifying for the grant. The child s safety is of primary importance and should be ensured through oversight by the existing mechanisms.. 2. Migration 2.1 Length of stay The duration of stay in South Africa by each child who participated in this research varies from one week to over 16 years. Twenty-three children had been in South Africa for over eight years. All of the migrant children had entered South Africa only once, indicating that migration by this group is not circular. Length of stay 0-2 years years years years years years years >16 years 4 TOTAL Reasons for migration The reasons for migration or joining a relative in South Africa are multiple and may overlap. Broadly, these were categorized in this research as set out below: 23% of the children accompanied an asylum seeker to South Africa; 22% reportedly migrated to South Africa for socio-economic reasons - including those in search of better education opportunities, those whose caregivers could no longer care for them due to poverty or poor circumstances in the country of origin, or duties of parental care diverted to relatives following the divorce of parents. In 21% of cases migration was prompted by the death of the primary caregiver. In these cases, the child came to South Africa to join the new primary caregiver, who was already residing in the Republic. 20 Amit, R Queue here for corruption measuring irregularities in South Africa s asylum system. Lawyers for Human Rights and The African Centre for Migration & Society Research Report, p.25 13

15 2 1 1 Main reason for migration Death of Primary Caregiver (21) Abandoned in country of origin (4) Accompanied asylum seeker (23) Conflict related (20) The dates of entry of the cases of children who said to have migrated for socio-economic reasons were analysed to establish whether there were any correlations with political events in neighbouring countries. The data indicated, however, that times of entry were spread out and were not concentrated by nationality. 21 Imprisonment of Primary Caregiver (1) Mental illness of Primary Caregiver (2) Old age of Primary Caregiver (1) Socio/Economic (22) Relocation of Primary Caregiver to third country (1) Suspected abduction (1) 23 Accompanied parent for medical care (1) years (May May 2017) years (May May 2015) years (May May 2013) years (May May 2011) years (May May 2009) years (May May 2007) 1 TOTAL : The border crossing The rules around travelling with children through ports of entry were significantly tightened by Regulations to the Immigration Act that entered into force on 1 June As described in an advisory by the Department of Home Affairs, the intention with the most recent amendment is to establish the principle that all minors require the consent of their parents when travelling into or out of the Republic. 21 Persons travelling with a child who is not his or her biological child, must produce a number of documents, including an unabridged birth certificate for the child; an affidavit from the parents or legal guardian of the child confirming that he or she has permission to travel with the child; copies of the identity documents or passports of the parents or legal guardian of the child; and the contact details of the parents or legal guardian of the child. 22 Upon entry an unaccompanied minor must produce proof of consent from one of or both his or her parents, or legal guardian. If only one parent is providing consent, there should also be a copy of a court order issued to him or her in terms of which he or she has been granted full parental responsibilities and rights in respect of the child; a letter from the person who is to receive the child in the Republic, containing his or her residential address and contact details in the Republic where the child will be residing; a copy of the identity document or valid passport and visa or permanent residence permit of the person who is to receive the child in the Republic; and the contact details of the parents or legal guardian of the child. 23 Parents travelling with their biological children are also required to Socio-economic migrant children time of entry 21 Website of the Department of Home Affairs, Advisory: new requirements for children travelling through South African ports of entry - Effective 1 June 2015, affairs.gov.za/index.php/statements-speeches/621-advisory-new- requirements-for-children-travelling-through-south-african-ports-ofentry-effective-1-june-2015 [Accessed 6 June 2017] 22 Article 12(c) of the Regulations to the Immigration Act (2015) 23 Article 12(d) of the Regulations to the Immigration Act (2015) 14

16 produce birth certificates and consent letters or court orders from absent parents. Despite the stringent legal framework, 94 (96%) of the migrant children who participated in this research entered irregularly i.e. without a passport and valid visa at the point and time of admission to South Africa. Of the 97 migrant children, 32 had entered South Africa after the Immigration Regulations came into force, 28 of whom were unaccompanied. In total (i.e. including those who entered prior to January 2015), 55% of the migrant children crossed the South African border unaccompanied by an adult exercising a duty of care over them. Fifteen children were said to have crossed the South African border with an unrelated adult and 17 with the assistance of transporters (paid and unpaid). Often, the caregiver in South Africa partook in the arrangements around the child s migration. It is concluded therefore that the application of the Immigration Act and Regulations as it pertains to unaccompanied minors is not consistent at land border posts. The main point of concern here is not the actual entry of unaccompanied minors, but the fact that they are not detected or immediately referred to a social worker. It is submitted that the lack of communication between DSD and DHA is the main reason for this gap. Immigration officers may not be equipped to deal with the admission of unaccompanied minors to the Republic, and except for the police, there is no contact person or service provider, who they may call for assistance. The objective of the stringent requirements around travel by minors is said to curb trafficking, 24 however, the ease with which children enter over land border posts clearly undermines this objective. Unaccompanied entry to South Africa Alone 14 Unrelated adult 15 Other children 2 Adult unrelated but know to the child 6 Transporter 17 TOTAL Reflection on the regularity of entry The extent to which the above provisions of the Immigration Act and Regulations apply to the entry of minor asylum seekers is not clear. Only one child entered at an airport, whilst the remaining 96 children entered at land border posts. This finding indicates that the admission of unaccompanied and separated children at land border posts go undetected. The Refugees Act in its present form states that asylum seekers cannot be penalized for irregular entry 25 and no person should be refused entry if he or she, as a result of the refusal, would be persecuted or their life and safety be put at risk, as understood under the defining criteria of eligibility for refugee status. 26 Typically, asylum seekers left their countries of origin in the context of armed conflict or public disturbance, and may not have any documentation at all. In addition hereto, birth registration is not systematically carried out in many African nations and it cannot be presumed that all foreign children should have had access to birth registration. According to a 2016 estimate by UNICEF, the births of nearly one fourth of children under the age of five worldwide have never been recorded. 27 At May 2016, UNICEF published its Global Database which describes rates of birth registration between in various countries. Some of the countries with statistics relevant to the study include: The DRC at 25%, Zimbabwe at 32%, 24 Travel Start, Unabridged Birth Certificate For Minors All You Need To Know, 2015, The Conversation.com, Human trafficking in South Africa: an elusive statistical nightmare, 16 July 2015, [Accessed 29 June 2017] 25 Section 21(4) of the Refugees Act No. 130 of Note that the Refugees Amendment Bill of 2015, under parliamentary review at the time of writing, purports to change this position. 26 Article 2 of the Refugees Act No. 130 of UNICEF, The births of nearly one fourth of the global population of children under five have never been registered, October 2016, [Accessed 2 June 2017] 15

17 Somalia 3%, Malawi at 6%, Mozambique at 48%, Rwanda at 63% and Burundi at 75%. In comparison, South Africa s birth registration rate was pinned at 85%, with the caveat that this statistic did not cover the entire country. 28 In practice, asylum seekers are not refused entry to the Republic despite not having documentation to gain legal entry, and the strict requirements of the Immigration Act are not applied to children entering in the company of asylum seekers. This may explain how children had entered without deposing of the necessary documents as prescribed under the Immigration Regulations. 2.5 The child s ability to regularise stay after admission to South Africa Following their admission to or birth in South Africa, 21 of the children who participated in this research were able to access some form of documentation to regularize their stay. Under the present legal framework, the documentation options available to undocumented foreign children are extremely limited and for many, unattainable leaving few options but eventually to return to the country of origin. A reflection on the options available to foreign children is set out below. Legal status under the Refugees Act In brief, an individual is eligible for refugee status if the person left their country of origin due to a wellfounded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, unable or, owing to such fear, unwilling to return to it. 29 Or, if the person left as a result of external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere. 30 Lastly, a dependent of an asylum seeker or refugee may derive the status of the principal applicant by virtue of their relation of dependency. In the case of Dawood v Minister of Home Affairs, the Constitutional Court held that the constitutional right to dignity must be interpreted to afford protection to the institutions of marriage and family life. 31 In the context of Refugee Law, the principle of family unity is enshrined in international law as the fundamental unit of society, and protection of the refugee family is of the utmost importance. 32 With regard to this research, it was found that conflict related issues influenced at least 43 children s movement. It was reported that 23 children are, or were at some point, accompanied by an asylum seeker in South Africa and 20 children sought refuge in South Africa of their own accord. Of the 43 children whose migration appeared motivated by conflict, 19 could access the asylum system either through relations of dependency or independently, and were documented under the Refugees Act. Option A: Derivative status under the Refugees Act Section 3(c) of the Refugees Act entitles a dependent of an asylum seeker or refugee to derive the same status as the principal applicant. A dependent is defined in relation to an asylum seeker or a refugee to mean the spouse, any unmarried dependent child or any destitute, aged or infirm member of the family of such asylum seeker or refugee. Children who accompany an asylum seeker or refugee parent may derive the same status as the parent through the application of Section 3(c), referred to in practice as family joining. Children born to asylum seeker or refugee parents also qualify for derivative status after their birth in the Republic. On a literal reading, the current definition results in non-biological children who are under the care of a refugee as being included in the definition, provided there exists a relation of dependency. However, Section 3(c) is interpreted in practice to cover only biological children. In some cases, a foster care placement order has been sufficient to satisfy the dependency 28 UNICEF, Global Database, May 2016, [Accessed 2 June 2017] 29 Article 3(a) of the Refugees Act No. 130 of Article 3(b) of the Refugees Act No. 130 of Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) paragraphs UNHCR Executive Committee, Conclusion No. 24(XXXII) Family Reunification, 21 October 1981; UNHCR Executive Committee, Conclusion No. 88 (L) Protection of the Refugees Family