World Refugee Day: 'Life changing' court ruling for dependents of asylum seekers

2019-06-20 19:10
Asylum seekers. (Ashraf Hendricks, GroundUp)

Asylum seekers. (Ashraf Hendricks, GroundUp)

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The Scalabrini Centre of Cape Town has hailed a "life changing" high court confirmation of a set of standard operating procedures (SOPs) by which a dependent of an asylum seeker can be documented and joined to their family's file.

The Western Cape High Court on Wednesday confirmed the SOPs after a three-year legal process.

The SOPs allow dependents of refugees to apply to be documented through family joining or on their own grounds, upon provision of documents such as a marriage or birth certificate.

The NGO explained in a statement that the landmark court order - handed down on Wednesday after negotiations between the Department of Home Affairs and civil society - affected children, spouses and dependents of asylum seekers and refugees living in SA whose lives are set to "radically improve".

"Wives, husbands, children and other dependents of asylum-seekers and refugees are able to document themselves in South Africa as 'dependents' of the principle asylum applicant in a process commonly known as 'family-joining'. This aspect of the Refugee Act – outlined at section 3(c) – means that refugee families can be documented together, ensuring their rights to family unity and dignity in South Africa," the organisation explained.

"As refugees cannot return to their country due to conflict or persecution, maintaining a family unit that is documented together is an important part of building stability and ensuring proper refugee protection in South Africa."

Many applicants, however, had reported difficulties when trying to join family members in this way, the organisation said.

"Wives, husbands, children, and other dependents of asylum applicants and refugees have been left with no way to document themselves in South Africa. They have been forced into an undocumented state, placing them in a position that is vulnerable to exploitation, detention and arrest."

The centre represented by the Refugee Rights Unit at the University of Cape Town and advocate Suzanna Harvey initially took the matter to court in 2016.

On Wednesday, the court confirmed a set of standard operating procedures which allow dependents to apply to be documented either through family joining or on their own grounds upon provision of certain documents regardless of where they were issued.

Should these not be available, affidavits would be submitted.

"This family joining is to be completed regardless of whether the dependents were included in the applicant's original asylum application or not. Should there be 'serious doubts' about the validity of a parents' claim over their child, the Department of Home Affairs can request a DNA test, which will then be assessed and possibly funded by the United Nations High Commission for Refugees (UNHCR)," the organisation explained.

"Administrative nuances aside, the ultimate success of this case is that asylum-seeking and refugee families can now enjoy their right to access documentation in South Africa. With documentation, these families no longer need to fear arrest and detention, can work legally, and can enroll their children in school without administrative barriers."

Department of Home Affairs spokesperson David Hlabane said the order and the final draft of the standard operating procedures were reached by mutual agreement between the department, the UNHCR, the Scalabrini Centre and UCT. 

"Refugees and asylum seekers were never denied this right if they had complied with the processes on arrival in the country. Problems arose when a person would go to our centre and claim that he/she is no longer single, but married, or where people would say they have children, but had forgotten to declare that they had children at the point of application. They, therefore, had to be subjected to processes that sought to establish the essence of their claims," Hlabane said.

"UCT and Scalabrini had raised issues on how such process can be streamlined, hence the judge at the high court had instructed all parties to go and develop an agreed process and revert back to the court."

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