Protection of Asylum Seekers and Stateless Children: Insights from Key South African Legal Decisions

Source: SA Migration, 08/01/2025

Asylum seekers and stateless individuals face significant challenges when attempting to find refuge in a new country, including the risk of detention upon arrival due to unauthorized entry. South Africa has witnessed landmark judgments in recent years that reinforce the protection of asylum seekers and highlight the state`s responsibility to protect those facing lifelong statelessness, especially in cases involving children. The Challenges of Asylum Seekers Asylum seekers often endure perilous journeys to reach a country where they can seek refuge. One of the primary obstacles they face is the risk of detention on arrival, particularly if their entry is unauthorized. This may occur due to various reasons, such as entering a country with false documentation, unauthorized crossing of borders, or relying on smugglers for entry. International legal instruments, notably the 1951 Refugee Convention, emphasize that detention should only be used as a last resort, and asylum seekers should not be penalized for entering a country illegally, as long as they have the intention to seek asylum. In response to these challenges, bodies like the United Nations and the Office of the High Commissioner for Refugees (UNHCR) have urged governments to gradually abolish immigration detention and adopt alternatives such as electronic monitoring, reporting requirements, or community supervision. These alternatives ensure the humane treatment of asylum seekers while respecting their right to seek protection.S A v Minister of Home Affairs and Others (2023): Protection of Asylum Seekers A landmark judgment by the High Court of South Africa (Gauteng Division, Johannesburg) in S A v Minister of Home Affairs and Another; S J v Minister of Home Affairs and Another; B I v Minister of Home Affairs and Another (2023) significantly reinforced the rights of asylum seekers. This decision addressed the principle of non-refoulement, a cornerstone of refugee protection, and interpreted the amendments to the Refugees Act of 1998 and its regulations, which came into force in 2020. The case centered on three individuals who had entered South Africa unlawfully and expressed an intention to seek asylum. They were detained under section 34 of the Immigration Act, 2002, which allows detention of illegal foreigners. However, the court found that their detention should cease as soon as they expressed their intent to apply for asylum. This ruling aligns with the Refugees Act, which ensures that asylum seekers` rights are protected even if they are in the country unlawfully, provided they indicate an intention to seek asylum. The court`s analysis drew from prior Constitutional Court decisions that highlighted the broader scope of the right to seek asylum, beyond just submitting an application. It emphasized that the Refugees Act takes precedence over the Immigration Act in cases of conflict and reinforced that the principle of non-refoulement ensures protection for asylum seekers until their claims are properly evaluated.The judgment also declared Regulation 8(4) of the Refugee Regulations (2018), which required asylum seekers to show good cause for their claim, to be ultra vires (beyond legal authority). This provision, which allowed judicial officers to impose extra requirements before granting asylum, was ruled unconstitutional because it undermined the Refugees Act. The court`s decision not only affirmed the rights of asylum seekers to seek asylum but also set important precedents for the treatment of individuals who enter the country unlawfully but express a legitimate claim for asylum. Childhood Statelessness in South Africa: The Khoza Case (2023)Another critical issue for refugees and asylum seekers in South Africa is the phenomenon of statelessness, particularly for children born to irregular immigrants. Stateless individuals often struggle with proving their identity, which can severely hinder their access to legal protections and basic services like education, healthcare, and employment. In the case of Khoza v Minister of Home Affairs and Another (2023), the High Court of South Africa addressed the issue of statelessness by considering the situation of a child born in South Africa to an irregular immigrant mother and an unknown father. Mr. Khoza, the applicant, was stateless and had lived his entire life in South Africa without official documentation. Despite numerous attempts to register his birth with the Department of Home Affairs, he was repeatedly denied assistance. The court found that it was not reasonable to expect Mr. Khoza, an orphan with no documentation of his birth, to prove his citizenship beyond doubt. It highlighted the challenges faced by children born in informal settlements or to parents who are themselves undocumented. The court noted that in these circumstances, individuals often have difficulty providing the usual documentation required for birth registration, such as hospital records. The court`s judgment reinforced the 1954 UN Convention on Statelessness and the Births and Death Registration Act (BDRA) of 1992. It emphasized that late birth registration must be facilitated, especially in cases where the individual was born in the country but cannot provide standard proof of birth due to their parents` irregular status or informal living conditions. The court ordered that Mr. Khoza`s birth be registered and declared him a South African citizen by birth or, alternatively, by naturalization. The court also ordered that the Minister of Home Affairs accept applications for citizenship by affidavit in cases like Mr. Khoza`s, pending the enactment of new regulations. This decision has significant implications for other stateless individuals in South Africa, establishing a precedent that the state must accommodate their circumstances and facilitate their legal recognition and citizenship status. Practical Implications and State Responsibility Both of these cases underscore the importance of recognizing and protecting the rights of asylum seekers and stateless individuals. They highlight the obligation of the state to provide avenues for refugees and stateless persons to access legal recognition, protection, and services, regardless of their formal immigration status. The Khoza case, in particular, illustrates the state`s duty to protect vulnerable children born in the country, even if their parents are irregular migrants or stateless. The ruling emphasizes that the lack of documentation should not be an insurmountable barrier to citizenship or legal recognition. It also aligns with broader international human rights frameworks aimed at protecting the rights of children, particularly those born to migrants or in informal settlements. The S A case, on the other hand, reinforces the principle that asylum seekers are entitled to protection and the right to seek asylum as soon as they express an intention to do so, regardless of their legal status. By ruling against the requirement for asylum seekers to demonstrate good cause and clarifying the procedural requirements for asylum applications, the court has enhanced the efficiency and fairness of the asylum process in South Africa. In both instances, the courts have reinforced the importance of ensuring that vulnerable individuals - whether asylum seekers or stateless children - are not left in a state of legal limbo, but are afforded the protection and rights they are entitled to under South African and international law. These decisions serve as a reminder of the state`s responsibility to uphold the rights of the most marginalized individuals in society, ensuring that they are granted the opportunity to seek refuge, gain legal status, and live with dignity. 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