IN THE HIGH COURT OF SOUTH AFRICA by f6sTbu

VIEWS: 24 PAGES: 19

									                  IN THE HIGH COURT OF SOUTH AFRICA
                    TRANSVAAL PROVINCIAL DIVISION


                                            Case No 5251/2005

In the matter between:


ACESS                                               APPLICANT




And



MINISTER OF SOCIAL DEVELOPMENT                      RESPONDENT



Together with:

LAWYERS FOR HUMAN RIGHTS                            AMICUS CURIAE




                  AMICUS CURIAE HEADS OF ARGUMENT




Advocate Jacob van Garderen
Lawyers for Human Rights
2nd Floor, Braamfontein Centre
23 Jorrisen Street
Braamfontein
011-339 1960
082 820 3960
A:       APPLICATION FOR LEAVE TO APPEAR AS AMICUS CURIAE


1. Lawyers for Human Rights (“LHR”) is a South African non-governmental

     organisation founded in 1979 which is dedicated to promoting and enforcing

     human rights through legal advocacy.



2. Since its inception in 1996, the Refugee and Migrant Rights Project of LHR

     has developed expert knowledge in the field of refugee law, including the

     socio-economic profile of the refugee community in South Africa. The

     organisation provides free legal assistance to indigent and vulnerable refugee

     and migrant clients through its specialist law clinics in Pretoria, Durban and

     Johannesburg.



3. In addition to its legal counselling services, LHR regularly makes policy

     submissions to parliament and conducts policy and legal research on issues

     relating to refugee and migrant law. One such research report focussed

     specifically on the policy framework and legal protection of foreign

     unaccompanied children1 and the applicable policy framework in South Africa.



4. The LHR Strategic Litigation Unit has also litigated in a number of precedent-

     setting public interest cases dealing with the rights and protection of refugees



1
 Mayer, Handmaker, Van Garderen, de la Hunt Protecting the most Vulnerable - Using the existing Policy

Framework to Strengthen Protection for Refugee Children (NCRA) September 2000. www.ncra.org.za




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     and migrant workers in South Africa. These cases have made a positive

     contribution to the development of jurisprudence in this field.



5. On 3 March 2006, Lawyers for Human Rights communicated to the parties to

     this application its desire to appear as amicus curiae to address the situation

     of unaccompanied asylum seeker and refugee children before the court.



6. Consent from both parties was obtained and consequently, a filing sheet was

     filed with this court on 17 March 2006 which included the letters of consent

     from both parties.



7. In its submissions, LHR will deal specifically with the effect of Regulation 7(c)

     of the Social Assistance Act Regulations of 2001 on access to foster care

     grants for unaccompanied, asylum seeker and refugee children in South

     Africa.



8. Lawyers for Human Rights therefore begs leave of this court to allow it to

     appear as amicus curiae on this particular aspect.




B:      INTRODUCTION TO ARGUMENTS




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9. LHR decided to become involved in this matter due to the serious

      consequences for refugee children created by Regulation 7(c) of the 2001

      Social Assistance Act Regulations. This regulation effectively removes the

      Director General’s discretion, in terms of Regulation 9(6) of the 1998 Social

      Assistance Regulations, to accept alternative forms of identification               for

      unaccompanied, asylum seeker and refugee children seeking foster care

      grants under the Social Assistance Act (Act no 59 of 1992).



10. Central to the problem of asylum seekers and refugees, and perhaps a matter

      not considered by the Minister when making these regulations, is that identity

      documents and permits for asylum seekers and refugees are not issued in

      terms of the Identification Act, but in terms of the Refugees Act.



11. The right of unaccompanied, asylum seeker and refugee children to access

      social assistance grants has been recognized both in legislation as well as in

      decisions from courts in this jurisdiction2.



12. In these circumstances, the constitutional imperative of considering the best

      interests of the child applies equally to unaccompanied, asylum seeker and

      refugee children as it does to any other child in South Africa.



13. Unaccompanied, asylum seeker and refugee children and their asylum

      seeker or refugee care-givers do not have access to 13-digit identity
2
    Bishogo and Others v Minister of Social Development and Others, Case No 9841/2005 (TPD)


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     documents as contemplated by the Identification Act (Act no 72 of 1986) and

     are therefore unable to produce such a document as required by Regulation

     9(1)(a) of the Social Assistance Regulations.



14. Further, the legal circumstances in which unaccompanied, asylum seeker and

     refugee children find themselves make it extremely difficult, if not impossible,

     to access official documents relating to their identity from their countries of

     origin as contemplated by Regulation 9(1)(b) of the Social Assistance Act

     Regulations.



15. By removing the discretion of the Director-General to accept alternative forms

     of identification for unaccompanied, asylum seeker and refugee children and

     their care-givers, this effectively bars these children from enjoying the right to

     access foster care grants meant to care for them and safeguard their best

     interests.




C:      CHILDREN UNDER SOUTH AFRICAN REFUGEE LAW


16. Asylum and refugee procedures are governed by the Refugees Act (Act no

     130 of 1998) which provides for the rights, obligations and procedures relating

     to asylum seekers and recognized refugees in South Africa.




                                                                                     5
17. The Refugees Act provides that it must be interpreted and applied to with

    regard to international conventions to which South Africa is a signatory. This

    includes the 1951 UN Convention relating to the Status of Refugees, the 1967

    Protocol Relating to the Status of Refugees, the 1969 OAU Convention

    Governing Specific Aspects of Refugee Problems in Africa as well as “any

    other relevant convention or international agreement to which the Republic is

    or becomes a party.”3 This would necessarily include the UN Convention on

    the Rights of the Child4 and the African Charter on the Rights and Welfare of

    the Child5 to which South Africa is a signatory.



18. The Act further provides two levels of asylum categorisation. The first is as

    an asylum seeker, who has made an application for asylum under the

    Refugees Act but who has not yet received a decision on the application.6

    The second is a recognized refugee who has been granted refugee status7 by

    a refugee status determination officer, an agent of the Department of Home

    Affairs.8



19. A refugee is defined in the Refugees Act:



            3. Subject to Chapter 3, a person qualifies for refugee status
            for the purposes of this Act if that person-


3
  Section 6(1) of the Refugees Act (Act no 130 of 1998)
4
  Ratified on 16 June 1996
5
  Ratified on 7 January 2000
6
  Section 21 of the Refugees Act (Act no 130 of 1998)
7
  Section 24 of the Refugees Act (Act no 130 of 1998)
8
  Section 24 of the Refugees Act (Act no 130 of 1998)


                                                                                6
              (a) owing to a well-founded fear of being persecuted by
              reason of his or her race, tribe, religion, nationality, political
              opinion or membership of a particular social group, is outside
              the country of his or her nationality and is unable or unwilling
              to avail himself or herself of the protection of that country, or,
              not having a nationality and being outside the country of his or
              her former habitual residence is unable or, owing to such fear,
              unwilling to return to it; or

              (b) owing to 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 of origin
              or nationality, is compelled to leave his or her place of habitual
              residence in order to seek refuge elsewhere: or

              (c) is a dependant of a person contemplated in paragraph (a)
              or (b).9


20. There is no age restriction as to who can apply for refugee status. This

      means that children are also considered asylum seekers if they apply for

      asylum and refugees if they are found to meet the criteria under section 3 of

      the Act.



21. Unaccompanied children, for whom it appears in respect of that they may

      meet the definition of a refugee under section 3 and is in need of care, are

      provided for under section 32 of the Refugees Act. In this section, the child

      must be brought before a children’s court to determine whether he or she is

      indeed in need of care under the Child Care Act.10 Section 32(2) provides

      that if the child is in need of care, the Children’s Court can order that

      assistance be given to that child to apply for asylum.




9
    Section 3 of the Refugees Act (Act no 130 of 1998)
10
     Act no 74 of 1983


                                                                                    7
22. In the meantime, that child may be considered an illegal foreigner under the

     Immigration Act11 and may thus not have any documentation as to his or her

     identity issued by the Department of Home Affairs. It is submitted, however,

     that they are protected from deportation under section 2 of the Refugees Act

     which prohibits deportation or return of “any person” who may face

     persecution in their country of origin.12



23. In the decision of Centre for Child Law and Another v The Minister of Home

     Affairs and Others,13 De Vos, J. stated that the State has an “active duty” to

     provide unaccompanied foreign children with the rights and protections set

     out in section 28 of the Constitution. She ordered that the particulars of all

     unaccompanied children being held in immigration detention at the Lindela

     Repatriation Centre be communicated to the Department of Social

     Development and that the Department of Social Development take immediate

     steps to bring those children before Children’s Court enquiries.



24. Identification documents for asylum seekers and refugees are governed by

     the provisions of the Refugees Act and not the Identification Act (Act no 68 of

     1997) which states that the Act applies to South African citizens and those

     lawfully and permanently residing in the Republic.14 Asylum seekers and

     refugees do not have access to identity documents or cards under that Act.


11
   Act no 13 of 2002, as amended
12
   Section 2 of the Refugees Act (Act no 130 of 1998)
13
   Centre for Child Law and Another vs. Minister of Home Affairs and Others, 2005 (6) SA 50 (T)
14
   Section 3 of the Identification Act (Act no 68 of 1997)


                                                                                              8
25. Identity documents for asylum seekers is governed by section 22 of the

      Refugees Act, which states that upon application for asylum, the refugee

      reception officer who received the application must issue a Temporary

      Asylum Seeker Permit allowing the applicant to sojourn temporarily in the

      Republic until their application has been adjudicated.15



26. Identity documents for recognized refugees are governed by section 30 of the

      Refugees Act, which provides for the information that is to be provided on a

      refugee identification document.           This document is an entitlement of a

      recognized refugee,16 however it is not an identity document or card as

      provided for in the Identification Act and therefore falls outside of the ambit of

      an identity document in Regulations 9(1)(a) and (b) and its related definitions

      in the 1998 Social Assistance Act Regulations.



27. Regulation 9(1)(b) of the 1998 Social Assistance Act Regulations leaves the

      door open for foreign children who are applying for a foster care grant to

      produce an official identity document of his or her country of origin. The

      problems associated with producing an official identity document from the

      child’s country of origin will be dealt with further below.




15
     Section 22(1) of the Refugees Act (Act no 130 of 1998)
16
     Section 27 of the Refugees Act (Act no 130 of 1998)


                                                                                      9
D:      REFUGEE CHILDREN AND BEST INTERESTS OF THE CHILD IN LAW



28. Section 28 of the Constitution of the Republic of South Africa17 provides for

     the basic rights of all children in South Africa. This section of the Bill of Rights

     is broadly worded to include “every child.”18



29. This section provides that every child has the right “to basic nutrition, shelter,

     basic health care and social services…”19 It further provides that the best

     interests of the child are of paramount importance in every decision regarding

     a child.20 This reflects the role the courts play as the upper guardian of

     children within its jurisdiction.



30. As stated in paragraph 101 of the Applicant’s Founding Affidavit, the State

     “has an obligation to ensure that children are accorded the protections

     outlined in section 28 and is obliged to provide appropriate social and other

     material assistance to families in need” when the child’s parents or family are

     unable to provide such protection.



31. The courts have ruled that this right extends not only to South African

     children, but any child in the Republic. In the Khosa case, the Constitutional

     Court stated clearly that broadly worded rights contained in the Bill of Rights


17
   Act 108 of 1996
18
   Section 28(1) of the Constitution of the Republic of South Africa (Act no 108 of 1996)
19
   Section 28(1)(c) of the Constitution of the Republic of South Africa (Act no 108 of 1996)
20
   Section 28(2) of the Constitution of the Republic of South Africa (Act no 108 of 1996)


                                                                                               10
     apply also to non-South African citizens in the Republic.21 In the Centre for

     Child Law22 case, De Vos, J. stated in unambiguous terms that the section 28

     guarantees for children must be extended to unaccompanied minors in South

     Africa.



32. The Refugees Act further provides that refugees have the right to “full legal

     protection, which includes the rights set out in Chapter 2 of the Constitution

     and the right to remain in the Republic in accordance with the provisions of

     this Act…”23




E: ACCESS TO SOCIAL SERVICES FOR UNDOCUMENTED, ASYLUM

     SEEKER AND REFUGEE CHILDREN AND THEIR CARE-GIVERS



33. The Refugees Act refers children who appear to be in need of care to the

     protections of the Child Care Act, as referred to above. In addition, regulation

     4(1) of the Social Assistance Act Regulations makes referral to foster parents

     by a children’s court in terms of the Child Care Act a precondition for eligibility

     for a foster grant.




21
   Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v
   Minister of Social Development and Others 2004 (6) SA 505 (CC) at para 46-47.
22
   Ibid fn 8
23
   Section 27(1)(b) of the Refugees Act (Act no 130 of 1998)


                                                                                         11
34. This view of asylum seeker and refugee children’s right to access social

     services is supported by the international conventions in terms of which the

     Refugees Act states that it must be interpreted.24



     34.1.     The 1951 United Nations Convention Relating to the Status of

               Refugee states at Article 23 that refugees must be given the “same

               treatment” when accessing public relief and assistance as nationals

               of the host country.25



     34.2.       The United Nations Convention on the Rights of the Child also

                 states that in all matters, the best interests of the child must be a

                 primary consideration in matters concerning public welfare

                 institutions.26 Further it states that in the case of children seeking

                 or granted refugee status, if they are deprived of their parents or

                 extended family, they must be accorded the same protections

                 afforded to any child who has been deprived of their family. 27



     34.3.       Similarly, the African Charter provides for unaccompanied refugee

                 children to be accorded the same protection as any other child

                 permanently or temporarily deprived of his family environment.28



24
   Ibid fn 1
25
   Article 23 of the 1951 United Nations Convention Relating to the Status of Refugees
26
   Article 3(1) of the 1989 United Nations Convention on the Rights of the Child
27
   Article 22(2) of the 1989 United Nations Convention on the Rights o f the Child
28
   Article 23(3)


                                                                                         12
35. South Africa has not entered any relevant reservations in respect of these

     conventions.



36. It is clear from the above that the term “foreign children” used in Regulation

     9(1)(b) refers equally to unaccompanied, asylum seeker and refugee children.



37. In Bishogo and Others v Minister of Social Development and Others a

     consent order was granted by Van der Merwe J in terms of which the

     Department of Social Development was ordered to adjust its administrative

     systems to allow processing of foster care grants by refugee foster parents,

     using identity documents issued to them in terms of the Refugees Act.29 This

     order reflects the reality that many care-givers to children in South Africa are

     refugees and require access to the foster care grant system in order to

     access the funds necessary to take care of their charges.




F:      IMPEDIMENTS TO ENJOYMENT OF THESE RIGHTS UNDER NEW
        SOCIAL SECURITY ACT REGULATIONS


38. In this section, we shall describe the way in which the present regulations

     would bar unaccompanied, asylum seeker and refugee children from the

     rights as set out above.




29
 Case No 9841/2005 (TPD)


                                                                                  13
39. The removal of the discretion of the Director-General under Regulation 9(6) to

      accept alternative forms of identification under Regulations 9(1) – (5), namely

      the forms of identification under Regulations 9(1)(a) and (b), has created a

      barrier to accessing social services for unaccompanied, asylum seeker and

      refugee children and their caregivers due to their legal status.



40. As stated above in Section C, the definition of a refugee in section 3 of the

      Refugees Act includes an important element of that definition which states

      that a refugee is “unable or unwilling to avail himself or herself of the

      protection” of his or her country of origin.



41. Their particular legal-political circumstances therefore prevent any possible

      communication with their country of origin to obtain an identity document.



42. In any event, people fleeing persecution do not normally travel with

      identification documents, either because of fear of being identified in transit or

      because they simply do not have the time to collect their belongings before

      fleeing. Indeed, the very nature of the persecution of that individual may have

      resulted in identity documents being withheld by their government.



43. The Refugees Act does not require asylum seekers and refugees to have

      entered the Republic through a border post.30 It is not appropriate to presume

      that an asylum seeker or refugee would have had a passport or other identity
30
     Section 21(4) of the Refugees Act (Act no 130 of 1998)


                                                                                     14
      document to enter South Africa. In fact, asylum seekers often arrive at border

      posts     or   relevant    government        institutions   without   any   identification

      documents.



44. In any event, the subjects of these applications are children and, most likely,

      children without adult guardians. Although Regulation 9(1)(b) of the Social

      Assistance Act Regulations makes provision for foreign children to provide

      “official identity document(s)” from their country of origin, it is most often the

      case that children are not in possession of these documents upon their arrival

      in South Africa.



45. Whereas the deponent for the Applicant in Section F of the Founding

      Affidavit, refers to the difficulties faced by South African children to obtain

      birth certificates in order to access social services31, asylum seeker and

      refugee children face not only misadministration of the issuing of birth

      certificates and other documentation from the Department of Home Affairs,

      but also circumstantial and legal barriers caused by the definition of their

      status in South Africa.



46. Circumstantially, a person fleeing from persecution who is unable or unwilling

      to avail himself or herself of the protection of the country of origin would also

      be unable or unwilling to avail himself or herself of government services of

      their country of origin, including the issuing of identity documents.
31
     Applicant’s Founding Affidavit, Section F (paragraphs 45 to 67)


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47. Often the situation of unaccompanied, asylum seeker and refugee children is

      such that they are unable to give the information necessary to obtain such

      identity documents. This is especially the case when they have lost their

      parents through death or being separated in conflict or long journeys.



48. Legally, people who approach their embassy may be seen as re-availing

      themselves of the protection of their country of origin.             International and

      domestic refugee law understands that re-availment may be grounds for

      ceasing refugee status and requiring that the refugee return to their country of

      origin.



      48.1.       Section 5 of the Refugees Act stipulates the conditions under which

                  refugee status may be ceased. Section 5(1)(a) specifically states:


                    5. (1) A person ceases to qualify for refugee status for
                    the purposes of this Act if-

                        (a) he or she voluntarily reavails himself or herself of
                        the protection of the country of his or her
                        nationality…32


49. Because a child under the Refugees Act is legally barred from re-availing

      himself or herself of the protection of his or her country of origin, for example

      by contacting the embassy and asking for identity documents, such a




32
     Section 5(1)(a) of the Refugees Act (Act no 130 of 1998)


                                                                                         16
     requirement by the 1998 Social Assistance Act Regulations would effectively

     bar that child from accessing the services under that Act.



50. Under the previous regulations, the Director-General had the discretion to

     accept other forms of identification from foreign children. This was alluded to

     in paragraph 34 of the Respondent’s Answering Affidavit which previously

     registered foreign children under the court order number from the children’s

     court.



G:      CONCLUSIONS



51. We submit that the substitution of Regulation 9(6) which removes the

     discretion given to the Director-General to accept alternative forms of

     identification as those prescribed in Regulation 9(1)(a) and (b) of the Social

     Assistance    Act     Regulations   is   unconstitutional   as   it   will   deprive

     unaccompanied, asylum seeker and refugee children access to the social

     services guaranteed to them by the Bill of Rights, the Refugees Act, the

     Social Assistance Act as well as decisions from this jurisdiction on that issue.



52. Although the effort by the Department of Social Development to reduce

     fraudulent applications is laudable, the effect of this measure will be to legally

     deprive unaccompanied, asylum seeker and refugee children of access to

     foster care grants.




                                                                                      17
53. Further, it may also have the unintended effect of depriving asylum seeker

      and refugee care-givers from accessing the same grants.



54. We agree with the Applicant’s submissions in its Replying Affidavit that this

      procedure, if found a violation of the Constitution, is not saved by the

      limitations clause in section 36(1) of the Constitution.33



      54.1.        The purpose of the limitation appears to be eradicating fraud from

                   foster care grant applications.           We submit that in the case of

                   asylum seeker and refugee children, this can be achieved as well

                   through the verification of asylum seeker and refugee identity

                   documents through the Department of Home Affairs.



      54.2.        The nature and the extent of the limitation would appear to

                   effectively bar unaccompanied, asylum seeker and refugee children

                   from accessing grants, as stated above. It would also bar asylum

                   seeker and refugee care-givers from accessing grants for children

                   under their care.



      54.3.        As stated above, asylum seeker and refugee documents can be

                   verified through the Department of Home Affairs.                    This would



33
     Section 36(1) of the Constitution of the Republic of South Africa (Act no 108 of 1996)


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              therefore not be the least restrictive means of achieving the

              purpose of eradicating fraud from foster care grant applications.



55. We therefore ask the court to grant the relief in the Applicant’s notice of

   motion and declare the challenged regulations unconstitutional, and set then

   aside. In the alternative, the regulations should be read to include alternative

   forms of identification.



56. We respectfully submit that the participation of Lawyers for Human Rights in

   this matter was essential to safeguard the constitutional rights of asylum

   seeker and refugee children, and that their participation was conducted in a

   reasonable manner. As such costs should be awarded to them.




J VAN GARDEREN

Counsel for the Amicus Curiae

14 August 2007




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