Pretoria - Lawyers for Human Rights (LHR) has scored a first-round victory for the rights of eight children seeking asylum in South Africa, but who have been separated from their parents for various reasons.
The children – aged from six to 16 – may now for the first time enter South Africa’s education system.
The Pretoria High Court ordered the education minister and Gauteng MEC for education on Monday to provisionally allow the registration and admission of the eight children in public schools this year.
The court also ordered the education minister to review – within six months – the admission policy for public schools to comply with the constitution, by making provision for child asylum-seekers and refugees.
The court will at a later stage be asked to review the government’s policy regarding all children who are dependants of asylum-seekers, but who have been separated from their parents and are now in the care of family members or other carers.
The children arrived in the country without any documentation, which means they do not have access to services such as education and medical treatment.
LHR will ask the court to declare that all the children be assisted by Home Affairs to obtain documents in terms of the Refugees Act.
These documents would make life much easier for them in this country.
They would declare that these separated children were dependants of their primary caregivers.
As things stand now, schools are fined if they enrol these children, who have no documentation.
The court will be asked to interdict the government from issuing fines or punishments against schools that register these undocumented children who are dependants of asylum seekers and refugees.
In the case brought to the court’s attention on Monday, the eight children hail from the Democratic Republic of the Congo (DRC).
In six of the cases the children were orphaned when their parents were killed in the DRC.
They fled from that country and were in many cases reunited with relatives here.
A six-year-old’s mother was killed by Rwandan rebels and she fled to South Africa to be reunited with an aunt.
A 14-year-old came to South Africa with her father, but he disappeared during xenophobic attacks and she was left in the care of an uncle.
A seven-year-old fled to South Africa with her mother, but was abandoned here and now lives with an aunt.
Advocate Ann Skelton, director of the Centre for Child Law, who argued the case on behalf of the eight children, said the application arose out of the need of these children for access to asylum seeker permits to be admitted to the education system.
The separated children have their own legitimate asylum claims, but cannot get these processed, as they are minors with no legal guardians.
The separated children are not the biological children of their primary caregivers, but in some cases they are related to them.
The government, however, does not recognise them as dependants of their carers.
They have no legal documentation which provides for their status in South Africa and are thus refused entry to public schools.
It was submitted that this violated their basic rights, as enshrined in the constitution.
The Department of Education indicated it would abide by any ruling the court gave.
Home Affairs indicated it would at a later stage oppose some of the relief asked for, but it has not yet filed any opposing papers. - Pretoria News
