Unaccompanied migrant children: Why we need to close the legal gaps to protect them

By Anjuli Maistry

According to the United Nations High Commissioner for Refugees, almost half of the world’s forcibly displaced people are children. A number of factors lead to the migration of foreign children to South Africa. Some flee conflict and unrest, natural disaster or recruitment as child soldiers, while others leave their countries in the face of extreme poverty.

For a variety of reasons, foreign children sometimes find themselves alone or unaccompanied in South Africa. Quite often, they are forced to migrate to South Africa alone or they become separated from their caregivers while en route. Other times, they are accompanied to South Africa with a caregiver but are later abandoned on the territory. This group of children is commonly referred to as “unaccompanied foreign minors”.

Unaccompanied foreign minors, according to South African policy guidelines, are by their very nature considered to be “children in need of care and protection”. When identified by authorities they ought to immediately be referred to the children’s court by their social worker for the children’s court to make an inquiry into the child’s circumstances. From the inquiry, the court will determine whether the child is indeed a child “in need of care and protection”. This process also involves a finding by the social worker on whether or not there is a possibility of reunification with their family or re-settlement in their country of origin.

There is no shortage of everyday difficulties faced by unaccompanied foreign minors. But it is where the child has no refugee claim (and would therefore be unable to access the asylum system) and the children’s court determines that the child is one in need of care and protection and that reunification in their country of origin is not possible that a critical protection gap arises.

What these children’s court findings indicate is that it is in the child’s best interest that they remain in South Africa. Quite dire circumstances must exist to lead to the conclusion that the child cannot be returned to their country. These include a finding that the child would be at risk of abuse on return, that there is no possibility of secure care arrangements being in place on their return or a general lack of confidence in that country’s safety, security and socioeconomic climate.

Despite these findings, together with confirmation that the child must remain in South Africa, there are no mechanisms in place to ensure that the child is documented in a manner reflecting the permanency and severity of the conclusions reached. The majority of the time, for all the years the child stays in South Africa, the only resource they will have is the children’s court order acquired on their being identified by authorities.

The lack of legal documentation poses a number of problems for this group. The children will be marginalised from government services and other commonplace activities. One of the most poignant examples of this is the inability to easily access the education system, particularly matric — for which providing identification is crucial.

In most cases the children will have spent their formative years in South Africa and will bear no ties to their country or origin. Connections to that culture, identity and language are often lost. The emotional burden stemming from the exclusion from South African society and the instability experienced deepens. With no ties to their country and no official ties to South Africa, the risk of statelessness (inability to access a nationality) grows. Further complications arise for the child when he or she comes of age and the child care system and children’s court order no longer applies.

While international and domestic structures surrounding the issue indicate that such children are entitled to the same level of protection as any other child deprived of his or her family environment, the reality is different. Despite tireless judicial pronouncement on the particular vulnerability of both children and migrants, the combination of the two hasn’t led to the provision of legal status or a consequent pathway to naturalisation for unaccompanied foreign minors.

So what do we do to protect the rights of this vulnerable group? The Immigration Act makes provision for a host of temporary and permanent residence permits for businesses, spouses and family members but makes no mention of this arguably far more vulnerable group. The Children’s Act is also lacking, and could benefit from unequivocally delineating the various role-players in relation to unaccompanied foreign minors — as well as their duties — to avoid any confusion.

Without serious governmental initiative and law reform there is only one avenue available to children falling into this group — a ministerial exemption in terms of the Immigration Act. This is a totally discretionary application for permanent residence which the minster of home affairs can grant if “special circumstances exist”. It is available to individuals as well as to groups. Being discretionary, there are no regulations guiding the exercise of this power and there is no definition as to what would constitute “special circumstances”. Further, from experience, an outcome on the application for exemption can take years.

We do hope that with continued effort to engage the department of home affairs on this issue, the construction of a long-term solution will be forthcoming, particularly through law reform that holistically recognises and fills the current gaps.

Anjuli Maistry is a lawyer with the Refugee and Migrant Rights Programme.