Family unit key in protecting refugees
REFUGEES don’t always have it easy in foreign countries and families have to stick together to overcome the many challenges they face.
Maintaining family unity is key to their protection.
The principle of maintaining the unity of the family is considered under the 1951 Convention Relating to the Status of Refugees and the 1981 Charter on Human and People’s Rights as the natural and fundamental group unit or basis of society.
Family unity is an essential right of the refugee. In protecting refugees, the host states must therefore protect refugee families against any human rights abuses.
An example of such abuse is where some members are denied certain rights that are enjoyed by other members of the same family.
According to the Charter, the government must protect families, especially women and children, and take care of their physical health, morals and traditional values.
In refugee situations, women are usually dependent on their husbands, whereas children are dependent on their mothers. In some cases, women or children are heads of households.
In South Africa, refugees are divided into groups and each group is afforded a specific legal position or status with particular rights attached to it.
These legal positions are undocumented asylum seekers, documented asylum seekers, refugees, refugees with a permanent residence permit (PRP) and refugees naturalised as citizens.
Of concern is that in certain refugee families, one member can be a holder of a PRP while others hold refugee permits or asylum seekers permits. Some may be naturalised citizens, whereas others still hold refugee status permits.
These different legal positions or statuses disturb the family unity, as well as the harmony in and development of the families as they are entitled to different constitutionally-based refugee rights. These legal problems, which are created by the Department of Home Affairs (DHA), frustrate refugees.
So, exactly how are these problems created?
Under the Immigration Act of 2002, asylum seekers are, at a port of entry, granted an asylum transit visa to enter into the country. In terms of the Refugees Act of 1998 they are required to report to the Refugees Reception Office (RRO) within five days to file their applications for asylum.
If it is a family seeking asylum, the head of the family files the application. If there are other members of the family who have been left behind, they are also cited in the application.
If the application is rejected, all members of the family who are physically present – as a group – are denied asylum. If the application is approved, all members of the family who are physically present – as a group – are granted refugee status.
Asylum seekers who have not yet filed their applications with the RRO are referred to as “undocumented asylum seekers” and do not enjoy the necessary protection under the refugee law.
In the 2006 case of Tafira v Ngozwane, the high court opined that the refugee protection kicks in when an individual has lodged an application of asylum and has been issued with a section 22 permit in terms of the Refugees Act.
The act further recognises that an individual seeking asylum, who is a dependent of an asylum seeker or a refugee, must automatically be granted asylum-seeker status or refugee status, respectively.
This approach of automatic recognition as a bona fide asylum seeker or a refugee applies to a spouse and children of the main applicant.
It also applies to those members of the family who stayed behind and joined their relatives later.
In particular, it is applicable to refugees who marry asylum seekers as their spouses become dependants.
It is the same for children born in South Africa to refugee or asylum-seeker parents. If children are born in South Africa to parents who are undocumented asylum seekers, they assume “undocumented” asylum-seeker status.
In other words, members of the family enjoy the same legal status as the head of a household. This practice is applied to legal positions of refugees as well as documented and undocumented asylum seekers.
Most issues arise when a head of a family applies to the Standing Committee for Refugees Affairs (SCRA) to certify that he/she will remain a refugee indefinitely.
Pursuant to the Refugees Act, the certification (or approval thereof) is a prerequisite for refugees to apply for permanent resident status in terms of the Immigration Act.
Prior to 2017, refugees were required to apply for certification if they have been residing in the country for five
years from the date on which they were recognised as genuine refugees.
After 2017, a period of 10 years of continuous residence is required.
The SCRA tends to exclude, for example, children born in South Africa or individuals who joined their families at a later stage.
Let’s use the following hypothetical example of a family of four: Mr Patrick fled his country for fear of political persecution, applied for asylum in 2005, and was recognised as a refugee in 2007.
In 2008, his spouse and first born joined him in exile and he applied to the RRO to recognise them as his dependants. They were recognised as dependants in 2010.
At the end of 2009, Patrick’s wife gave birth and he applied for the baby to be recognised as a dependant and this application was also approved in 2010. In that same year, all members of Patrick’s family were formally recognised as refugees.
In 2012, Patrick became eligible to apply – as the head of the household – to the SCRA for certification that they will remain refugees indefinitely. The SCRA approved his application, but, in the letter of approval, stated that his spouse and two children were not eligible for certification, simply because they had been staying as refugees in South Africa as from 2010.
According to the SCRA, they would only be eligible for certification in 2015.
In this situation, Patrick’s application is approved and he becomes a permanent resident, while his wife and two children remain “refugees”.
During this time his wife gives a birth to their third child. The question is: what is the new baby’s legal position in this situation?
While briefing the Portfolio Committee on Home Affairs on the Constitutional Court judgment regarding the naturalisation of foreign children, the Minister of Home Affairs Dr Aaron Motsoaledi, on March 3 last year, affirmed and stressed that foreign children take the legal status of their parents: If a child was born as an asylum seeker, he/ she would take that status.
If he/she was a child of a refugee, she/he would be a refugee too. If one was a child born of a parent with permanent resident status, one would automatically acquire such status. If one’s parents were naturalised, one would be naturalised too.
At the age of 18, children are at liberty to decide on their own legal status or what they wanted to be. In this regard, children born and raised in South Africa of parents who are asylum seekers, refugees or migrants and who have not been granted permanent residence status, can apply for citizenship through naturalisation.
In light of the above, the DHA should be consistent in its treatment of refugees and asylum seekers and should work to maintain the sanctity of the unity of the family through ensuring all members have the same legal status as proclaimed by the Minister of Home Affairs.
Their children who were born and raised in South Africa should be allowed to apply for citizenship.