Cape Town - Children who seek asylum and enter South Africa with a relative other than their biological parent may now be classified as a dependent of the person, and have an asylum claim in their own right.
The North Gauteng High Court last week declared that children with a relative, who is allowed to apply for asylum, should be included as a dependent of that caregiver in the same way that biological children are included.
The court case concerned a 16-year-old boy who entered South Africa with his aunt after he was orphaned during armed conflict in the Democratic Republic of Congo, and was not included in his aunt’s asylum-seeker permit simply because he was not her biological child.
Although the boy qualified to apply for asylum he had no papers and as a ersult he struggled to get access to education and health services.
Lawyers for Human Rights and the Centre for Child Law assisted him and four others in a similar situation, seeking an order declaring that children who had been separated from their parents are dependents of their primary caregivers.
The court last Thursday ruled that separated children are dependents of their primary caregivers in terms of section one of the Refugees Act 130 of 1998.
The court further ordered the Minister of Home Affairs and the director-general to inform all Refugee Reception offices to issue relevant permits to separated children that would classify them as dependents of their caregivers.
Judge Tati Makgoka said: “While I agree that there are inherent risks associated with documenting separated children as ‘dependents’ of adult refugees or asylum seekers without any preceding investigation, there is a higher risk if that is not done.”
The Department of Home Affairs argued that children should be treated with care because they are at risk of being trafficked.
Home Affairs department spokesperson Mayihlome Tshwete on Monday said the department’s lawyers were still considering the judgment.
Karabo Ozah of the Centre for Child Law said children orphaned by war should be cared for by their relatives.
“These are the people that they know and love, who have risked everything to take them to safety.
“The judge recognised that in African culture, people do not stop to say, ‘Is this my biological child?’. They say ‘I must look after my sister’s children as if they are my own’,” Ozah said.
Callixte Kavuro, chairman of the Rwandan platform for Dialogue, Truth and Justice (RDTJ), said many children who have lost their parents accompanied relatives to seek asylum in other countries.
“In Africa, a child belongs to his extended family and not only their nuclear family.
“For refugee children to attend schools and to seek medical attention, for example, they must hold relevant documentation,” Kavuro said.