orphans and asylum seekers because their parents had either been killed during the political conflict in DRC or had abandoned them. They were in the care of aunts or uncles who were also asylum seekers or refugees in South Africa. The DHA had refused to join the children to the files of their aunts or uncles on grounds that they wanted formal proof of guardianship (i.e., a Children’s Court order) because these were not their biological parents. The High Court ordered that the children be joined to their relatives’ asylum files and that the DHA did not have to wait for formal proof of guardianship beforehand.The High Court reasoned that the initial permit issued is a temporary permit to ensure that the children are documented and that the process to obtain a Children’s Court order could follow after a permanent permit is issued. That would counter against leaving the child undocumented and untraceable until they acquire a permit. Undocumented children are at an enormous disadvantage because they cannot apply for social assistance. This is despite South Africa having ratified both the CRC and ACRWC - which stipulate that every child has the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right. Note: in reality, the DHA still insists on proof of guardianship but does not take into account the difficulty related to applications for guardianship by asylum seekers or refugees. Section 24 of the Children’s Act states that a person with an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child. Section 25 further states that guardianship applications by non-South African citizens are considered “inter country adoptions”. This makes guardianship almost impossible for asylum seekers and refugees. Alternatively, the relative may try to obtain: 1. 2. a foster care order; or a care and contact order. Get this done through a Children’s Court inquiry (see Chapter 4 on Children’s Court and Child Protection Processes). What happens when a child who has been registered as a dependent turns 18 years old? A dependent under the Refugees Act is defined as “an unmarried minor child”. So a dependent 28 | may lose their dependency if they get married or become a major when they turn 18 years old. According to Sec 21B(3A) and Sec 21B(3), read with Reg 11 of the Refugees Act, the child is “delinked” from the adult applicants file and required to submit their own application within six months. If they fail to do so, they may be deemed “illegal foreigners” under the Immigration Act and be at risk of arrest and deportation. 3.3.3. UNACCOMPANIED MIGRANT CHILDREN An “unaccompanied migrant child” is a child who arrives alone in South Africa and has been separated from both their parents or legal guardians and any adult relatives. An unaccompanied migrant child can submit an asylum claim if they meet the requirements of Sec 3 (a) or (b) of the Refugees Act. The child must be referred to the Department of Social Development or Child Protection Organisation in the area where the child was found or resides. A Children’s Court inquiry must then be initiated and the child can be issued an asylum seeker visa with the assistance of a social worker or any other representative appointed by the Children’s Court. (See Chapter 4 on Children’s Court and Child Protection Processes). 3.4. IMMIGRATION STATUS Applicable law: South African Immigration Act 13 of 2002 (Immigration Act) The Immigration Act sets out the conditions under which migrants (who have no claim to citizenship status or refugee status) can enter the country, stay in the country and leave the country. Section 31(2)(b) of the Immigration Act allows a person to submit an application to the Minister for permanent residence by exemption when “special circumstances” exist. Children who do not qualify for citizenship status or refugee status - are left with a final option of immigration status under the Immigration Act. However, the Immigration Act is very restrictive and caters mostly to children who qualify to claim immigration status as a dependent under a parent or legal guardian.