Although the definition or concept of an “asylum seeker” or “refugee” applies to all people regardless of age - it is commonly interpreted in the context of adults. It is important to note that children may also be asylum seekers or refugees and can submit an application for refugee status in South Africa if they meet the standard defined in the Refugees Act. In terms of Sec 3 of the Refugees Act, an asylum seeker qualifies for refugee status in South Africa if the asylum seeker: 1. 2. 3. owing to a well-founded fear of being persecuted for reasons of; race, tribe, religion, nationality, political opinion or membership of a particular social group, has been forced to flee their country of origin or citizenship; owing to violence, war or conflict in their country of origin or citizenship, has been forced to flee that country to seek refuge elsewhere; or is a dependent of a person contemplated in paragraph (1) or (2). We will distinguish between the three categories of child asylum seekers in figure D (Page 26). 3.3.1. ACCOMPANIED MIGRANT CHILDREN An “accompanied migrant child”, in this guide, is a child who arrives in South Africa in the company of their parents or legal guardians. An accompanied migrant child can submit an independent asylum claim if they have personally suffered persecution or experienced violence, war or conflict in their country of origin or citizenship as defined in Sec 3 (a) and (b) of the Refugees Act. In this scenario, the parent or legal guardian must provide guidance and assistance to the child in presenting their claim. An accompanied child can also submit a claim as a dependent of an asylum seeker or refugee (a “dependent asylum claim”) as defined in Sec 3 (c) of the Refugees Act. This process is also known as “family joining” or “family unification” and takes place as follows: 1. if the child is born before the application for refugee status is submitted, the adult applicant must include the details of the child in the www.lhr.org.za 2. application in order to have the child added to their file (See Sec 21B(1) and Reg 8 of the Refugees Act); or if the child is born after the application for refugee status is submitted, the adult applicant must conduct birth registration for the child and submit the birth certificate to the Refugee Reception Office in order to have the child added as a dependent on their file (See Sec 21B(2) and Reg 8 of the Refugees Act). A “family joining” or “family unification” form is completed and submitted - with supporting documents, e.g., a birth certificate or DNA test. A hearing will take place, and if the process is successful, the child is issued an asylum seeker visa or refugee status. Scalabrini Center Cape Town v Minister of Home Affairs unreported judgment WCHC Case No 5242/2016 – the High Court ordered the DHA to ensure adequate policies for dependents of asylum seekers and refugees to be documented within a reasonable time. As a result, the DHA published a document called the “Standard Operating Procedure: Refugee Family Unification” that confirms the “family joining” process. 3.3.2. SEPARATED MIGRANT CHILDREN A “separated migrant child” is a child who arrives in South Africa in the company of an adult relative but has been separated from their parents or legal guardians. A separated migrant child can submit an independent asylum claim if they meet the requirements of Sec 3(a) or (b) of the Refugees Act. The adult relative in this scenario must provide guidance and assistance to the child in presenting their claim. A separated migrant child can also submit a claim as a dependent of an adult relative who is an asylum seeker or refugee. This has been confirmed by our courts in the judgment below. Mubake v Minister of Home Affairs (2016)2 SA 220 (GP) – court extended the definition of “dependent” under Sec 3(c) of Refugees Act to include separated children in the care of a refugee or asylum seeker who is a relative: The case concerns seven children from the Democratic Republic of Congo. They were all www.savethechildren.org.za | 27