Authors: Cletus Muluh Momassoh, Rachel Chinyakata and Glynis Clacherty
Introduction
The recurrent political conflicts in several parts of Africa have contributed to the refugee population worldwide. Most of the refugee population from Africa resides within Africa, mostly in neighbouring countries. However, the continent also hosts refugees and asylum seekers from other parts of the world. According to the African Commission on Human and People’s Rights (2024) statement, the refugee and asylum seeker population stock is located in several sub-regions within the continent, including Southern Africa (10,056,577), East Africa and the Great Lakes Region (5,430,153) with Sudan accounting for almost 2 million, representing the largest refugee crisis in the continent, and West and Central Africa (3,324,428). This represents almost half of the refugee and asylum seeker population worldwide. While South Africa is considered one of the major economic powerhouses on the continent, Uganda has been acclaimed for its open refugee policies, making the two countries an attractive destination for refugees and asylum seekers on the continent. In their host environment, this vulnerable group of people needs protection, which can only be defined and shaped by comprehensive legal frameworks in the receiving country that enhance their protection and safeguard their rights.
International & National Legal Framework (South Africa & Uganda)
Both South Africa and Uganda are parties to several international legal frameworks that provide protection and safeguard the rights of asylum seekers and refugees in their respective countries, including non-refoulement, access to documentation, and access to essential services (education and health). Two of these legal frameworks (the 1951 UN Convention and the 1969 OAU Refugee Convention) provide a comprehensive understanding of the concept of refugee. While the UN’s Convention definition focused on individual persecution, the 1969 OAU Refugee Convention broadened the definition of a refugee to include disruptive conditions in the country of origin that may displace people, such as generalized violence, external aggression, occupation, or foreign domination. While in South Africa, Section 3 of the Refugee Act 130 of 1998, as amended, provides a definition of a refugee. In Uganda, Section 4 of the Refugee Act of 2006 and its 2010 regulations provide a similar definition, which aligns with the 1951 UN Convention and the 1969 OAU Convention. In South Africa and Uganda, Sections 4 and 5, respectively, outline the grounds for exclusion from refugee status in both countries. The legal framework for the protection of refugees and asylum seekers, as informed by international and local legislation in South Africa and Uganda, is presented below.
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South Africa |
Uganda |
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Refugee Model |
Right-based non-settlement individual refugee Model |
Settlement-based, community-oriented model |
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Refugee/ Asylum seeker Population
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250,250 in 2023 (UNHCR, 2024) |
1,858,060 in 2025 (UNHCR, 2025) |
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Intl. Legal Framework |
1951 UN Convention on Refugees
1967 Protocol Relating to the Status of Refugees
1969 OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa
Kampala Convention, 2009
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
International Covenant on Civil and Political Rights, 1976
Convention on the Elimination of All Forms of Discrimination Against Women, 1979
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National Legal Framework |
Constitution of the Republic of South Africa, 1996
The Refugee Act 130 of 1998 and its amendments
Immigration Act (No. 13 of 2002)
South African Schools Act 84 of 1996
National Health Act, 2003
Department of Health Circular (2007)
National Health Insurance Act (2023)
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Constitution of the Republic of Uganda, 1995
The Refugee Act of 2006 and the Refugee Regulations 2010
Uganda Citizenship and Immigration Control Act, 2009
Universal Primary Education (UPE) policy of 1997
Universal Secondary Education Policy of 2007
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Non-binding Intl. and African Guidelines |
Commission’s Migration Policy Framework for Africa and Plan of Africa (2018-2030)
International Global Compact for Safe, Orderly and Regular Migration, 2017
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Figure 1: International & national legal framework on refugee protection in South Africa and Uganda
While the 1998 Refugee Act in South Africa was recognised as one of the most progressive in the world, its amendments and regulations have brought about substantive changes to the legislation. The 2006 Refugee Act in Uganda has been applauded for its refugee settlement model, as it gives refugees a sense of security and self-reliance and facilitates their integration process within their host communities (Wamara et al., 2021).
Understanding laws and Policies Governing the asylum and refugee Process in South Africa
The 1998 Refugees Act (Act 130 of 1998) is the primary legislation governing refugees and asylum seekers in South Africa. Refugees and asylum seekers are protected by the Refugees Act of 1998 and its accompanying regulations, as well as extensive amendments to the Act and regulations that came into force in January 2020 (Refugee Act 130 of 1998 and the several amendments from 2008 to 2017).
The 2017 Refugees Amendment Act is the most extensive of the amendments. Its provisions on the exclusion of refugee status exclude asylum seekers from refugee status if they have not reported to a Refugee Reception Office within five days of entering the country, and limit asylum seekers’ right to work to those who are unable to support themselves and their families after four months and those who are not supported by a non-governmental organisation (NGO) or the UN Refugee Agency (UNHCR). Asylum seekers must also provide a letter of employment within six months of being granted the right to work. The amendment extends the time limit before refugees may request permanent residence from five to ten years. It also provides for a fine or a prison sentence (up to five years) for persons in possession of an expired asylum-seeker visa, allowing asylum applications to lapse and the removal of asylum seekers' registrations during the status determination process. It further stipulated that failure by an asylum seeker to renew their visa within one month of its expiry, their application process will be deemed abandoned, barring them from reapplying and subjecting them to deportation. However, this clause has been declared unconstitutional as it constitutes acts of refoulement and a violation of the constitutional rights of the applicant. Most of the 2017 amendments to the Refugee Act are considered restrictive and unconstitutional.
A comprehensive legal framework that protects the rights of refugees and asylum seekers upholds their rights, including their rights to non-refoulement, access to essential services (education and health), and access to documentation.
Access to Documentation
Documentation is essential in accessing services to both nationals and foreigners. Documentation is crucial for asylum seekers and refugees as it enables them to access services including employment, housing, healthcare, education, social benefits, birth and death registration, and protection. The absence of an identity document increases the vulnerability of the asylum seeker, as all their rights and benefits within the Republic are intricately linked to their identity document. Legal status is the determinant of accessing most or all other services. In South Africa, asylum seekers are issued with an asylum visa as their identity document. The court in the case of Kiliko v Minister of Home Affairs echoed the importance of an identity document to asylum seekers in accessing their rights, as its lack thereof severely restricts them regarding a wide range of activities that ordinary human beings participate in (Kerfoot et al., 2023). It is also important to note that the Refugee Amendment Act of 2017, read together with regulations 2, 3, 8, and 11 of the Refugee Regulation, lays down the conditions for family unity (family joining), emphasising the importance of the principal applicant to declare all dependents in their original application for asylum to facilitate the joining process.
Figure 2: Asylum Process South Africa
Although there is a comprehensive legal framework detailing the processes for documenting asylum seekers and refugees in South Africa, its practical implementation is complex and faces significant challenges.
The principle of non-refoulement
The principle of non-refoulement is the cornerstone of the 1951 UN Convention that seeks to prohibit the forced return of a refugee or asylum seeker to a country where they may be persecuted. The principle is enshrined in Article 33(1) of the 1951 Refugee Convention. The French word refoulement means “to drive”, “force back”, or “to refuse entry” (Khan, 2023). It can be achieved both directly and indirectly. Directly in that a person fleeing persecution is refused entry into the country and sent back to their country of origin, and indirectly through processes that hinder the asylum seeker from accessing certain rights, including socio-economic, administrative, civil, or political rights (ibid). This entails that actions that prevent an asylum seeker from entering the country or instituting policies that hinder their enjoyment of certain services within their host country, for example, social grants, constitute a bridge to the principle of non-refoulement. In South Africa, the principle of non-refoulement is captured in Section 2 of the Refugee Act, domesticating the 1951 UN Convention and the OAU 1969 Convention to which South Africa is a party, ensuring that asylum seekers are protected in South Africa and not return to their country of origin if they face a potential risk of persecution. In line with Article 31 of the 1951 UN Convention, Section 21(4) of the Refugee Act in South Africa makes provisions for non-penalisation for irregular entry. Despite the legal prerogatives, there are instances where the state has acted contrary to the principle of non-refoulement and has been challenged in the courts. For example, in the Constitutional Court judgment between Ruta v Minister of Home Affairs where Peter Ruta, a Rwandan national, was denied by the Department of Home Affairs to apply for an asylum visa because he had delayed applying and was arrested for a traffic violation. The court held that a delay in applying for an asylum visa or a conviction does not disqualify an applicant from seeking refugee status in the country. The court emphasised that each case must be evaluated on its own merits. Although the Refugee Act seeks to protect people fleeing persecution and ensure that they are not returned to their country of origin if there is an imminent risk that they will be persecuted, the Refugee Act in Section 28 also provides grounds (posing as threat to national security and public order) on which a refugee or an asylum seeker may be removed from the country. These conditions are in line with Article 33(2) of the 1951 UN Convention, which emphasises the same grounds for expulsion. However, there are instances within the South African legal framework where contradictions within the law violate the principle of non-refoulement. For example, Section 5(2)(3) & (4) on the conditions of the cessation of refugee status states that if a refugee participates in any political activity in the Republic, their refugee status will be revoked/withdrawn and dealt with as an illegal foreigner in terms of the provision of the Immigration Act. Therefore, such a refugee will be subjected to deportation. These provisions conflict with Section 28 of the 1998 Refugee Act and Article 33(2) of the 1951 UN Convention.
Access to Social Services (Education & Health)
The right to education and health are basic humanitarian rights recognised as fundamental in various international human rights legal instruments and national legal frameworks. Access to education and health for refugees serves as a foundational element for their protection, empowerment, and integration in their host communities. In South Africa, the educational system is regulated by the South African Schools Act and related regulations, and Section 3 emphasizes the right to basic education for all, as enshrined in the South African Constitution. The Act also ensures that refugee and asylum seekers’ children have access to education, regardless of their immigration status. Above all, section 3(1) of the South African Schools Act (No. 84, 1996) makes primary schooling compulsory in South Africa. However, there are contradictory legislations in South Africa that seek to limit undocumented migrants and their children's access to education. For example, Section 39(1) of the Immigration Act promises legal action against institutions that admit “illegal foreigner” and the National Policy Act (No. 27, 1996) requires undocumented migrants (illegal aliens) to show proof of application to the Department of Home Affairs to legalise their stay in the country in terms of the Alien Control Act (No. 96, 1991). Notwithstanding these conflicting legal imperatives, the case of Centre for Child Law and Others v Minister of Basic Education and Others (Phakamisa judgement) clarified the inconsistency, as it held that no child/learner should be excluded from accessing education based on a lack of documentation. The Department of Education Circular 1 of 2020 which applies to public schools in line with the judgement outlines alternative proof of identity where a birth certificate, passport, visa, or permit cannot be provided which include affidavit or a sworn statement deposed to by the parents, care giver or guardian of the learner wherein the learner is fully identified. The legislations also apply to unaccompanied and separated migrant children.
Despite the existence of a legal framework that seeks to ensure that all children of school-going age are not exempted from accessing basic education, in practice, there are several challenges impeding refugees' and asylum seekers' access to education including inadequate finance, lack of information, limited language proficiency, and xenophobia (SIHMA, 2023). These challenges highlight the discrepancies between the legal imperatives and the lived reality of asylum seekers and refugees.
Health is recognised as a fundamental human right essential for human dignity, well-being, and quality of life. Every human being should be able to enjoy the highest attainable standard of health, favourable to living a life of dignity. Several international legal instruments, for example, the Universal Declaration on Human Rights (1948), the International Covenant on Economic Social and Cultural Rights (1966), and the Convention on the Rights of the Child (1989), all highlight the universal nature of access to healthcare to everyone regardless of their race, nationality, religion, or political affinity.
South African public healthcare is structured into three main levels: primary, secondary, and tertiary levels. The primary level, which includes clinics, provides primary health care. The secondary level, which includes community health centers, provides more services than the clinics and is usually equipped with doctors and nurses. The tertiary level includes hospitals that provide emergency and specialised treatment not provided in community centres and clinics. In South Africa, the right to access medical healthcare is enshrined in several legal frameworks. The Constitution, as indicated in the Bill of Rights section 27, the 1998 Refugee Act section 27(9), and Section 4(3) of the National Health Act 2003. Furthermore, in 2007, the Department of Health in its National Revenue Directives on the applicable fees for refugees and asylum seekers confirmed the rights of refugees and asylum seekers with or without documents, to access basic healthcare and antiretroviral therapy on the same basis as nationals (fees subjected to a means test) (Dass et al., 2023). It is important to state that although the 1998 Refugee Act and several memos from the Department of Health expressly state that refugees and asylum seekers are subjected to the same conditions in accessing healthcare, the 2017 Amended Refugee Act that came into force in January 2020 makes a distinction between the rights of refugees and asylum seekers and does not specifically include access to basic healthcare. The restrictive legal policy framework also finds expression in chapter 2 (4.2) of the 2023 National Health Insurance Act, which limits access to asylum seekers and refugees only in cases of emergency and notifiable conditions of public health. Although the 2023 National Health Insurance Act echoes the access to healthcare for children of asylum seekers and illegal foreigners as provided in the Constitution of the Republic, the Act assumes an exclusionary posture towards asylum seekers and illegal foreigners. However, the Gauteng High Court decision declared previous policies that denied access to undocumented individuals or asylum seekers as unlawful and inconsistent with the National Health Insurance Act. To that effect, the Department of Health amended its patient administration and revenue management policies to align with the court decision which entitled all pregnant women, all women who are lactating, and all children below the age of six to free healthcare services at any public health establishment, irrespective of their nationality or legal status. Unless they are members of a medical health scheme or they have come to South Africa for the specific purpose of obtaining healthcare (Scalabrini Centre of Cape Town, 2023)
The changes in the legal framework concerning access to healthcare for refugees and asylum seekers create a decision gap in terms of the administration of the law on the ground, and in some cases, migrants are either charged for services that are supposed to be free or refused access to certain health services which increases their vulnerability.
Understanding laws and Policies Governing the asylum and refugee Process in Uganda
With a long history of hosting refugees and asylum seekers in Africa since 1959, Uganda is still Africa’s highest refugee hosting country, and together with the Islamic Republic of Iran, Turkiye, Colombia, and Germany host one-third of the world’s refugees and other people in need of international protection (UNHCR, 2025). Within the continent of Africa, Uganda has positioned itself as a “safe haven” for people fleeing persecution. Uganda does not have an encampment policy. The government, in collaboration with international organisations such as the UNHCR, established refugee settlements, where refugees are provided with a piece of land to build their own houses and engage in livelihoods. While most of the refugees in Uganda are in refugee settlements, others are in urban areas (self-settled refugees), especially in Kampala. There are 13 refugee settlements in Uganda: Adjumani, Bidibidi, Imvepi, Kiryandongo, Kyaka II, Kyangwali, Lobule, Nakivale, Oruchinga, Palabek, Palorinya, Rhino Camp, and Rwamwanja (UNHCR, 2021). The Refugee Act of 2006 and the Refugee Regulations 2010 provide a comprehensive framework for the protection of asylum seekers and refugees in Uganda. The Refugee Act has enabled the Ugandan settlement approach, where refugees are welcomed, registered, provided with identity documents, social services, and allocated a plot of land.
Access to Documentation
Uganda's refugee status determination process is generally categorised under two conditions: (a) prima facie basis and (b) non-prima facie basis. A prima facie determination means that an asylum seeker is given a refugee status based on their country of origin without having to go through an individual determination process. In contrast, the non-prima facie determination is done based on individual assessment. The Prima facie determination typically involves countries with an established history of persecution, violence, or human rights abuses, which may involve membership of a particular group, ethnicity, or nationality targeted for persecution. Section 19 of the Refugee Act of 2006 states that asylum seekers are required to make an application to the eligibility committee within 30 days of their arrival in Uganda, and Section 20 states that the eligibility committee is required to decide (grant or reject) on the application within 90 days. Access to documentation in Uganda (Prima Facie Case) is as follows:
Figure 3: Asylum Process in Uganda (Prima Facie case)
Several legal and procedural gaps in the Refugee Act concerning access to documentation risk undermining the protection of refugees and asylum seekers in Uganda. These include the lack of adequate legal representation in the process and the powerless role of the Refugee Appeal Board, which can only make recommendations but cannot revoke the decision of the Refugee Eligibility Committee even if it disagrees with such a decision. Access to documentation in Uganda (Non-Prima Facie Case) is as follows:
Figure 4: Asylum Process in Uganda (Non-Prima Facie Case)
Principle of non-refoulement
In line with its international obligations concerning the specific issue of refugees, as enshrined in several international conventions to which Uganda is a party, including the 1951 UN Convention Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Uganda, through its national legislation, has domesticated the principle of non-refoulement. Section 42 of the 2006 Refuge Act alludes to the principle of non-refoulement by stating that no person shall be expelled or extradited to any other country if the person is going to be persecuted on account of his/her race, religion, sex, nationality, membership of a particular social group or political opinion; or if his/her person or liberty would be threatened by external aggression, occupation, foreign domination, or events seriously disturbing public order. Furthermore, the Act also, in Section 38, upholds the principle of non-penalisation and provides that no legal proceedings shall be initiated or continued against any person for unlawful entry or presence in Uganda if they intend to apply for a refugee status or are already granted refugee status. The Refugee Act (2006) in Uganda recognises two categories of refugees: prima facie case refugees and non-prima facie case refugees. As prescribed in the 2006 Refugee Act, the right of non-refoulement is a duty bestowed on the state to protect refugees and not to return them to their country of origin or any other country where they may be persecuted. However, the 2006 Refugee Act in section 40 states that after consultation with the Minister responsible for internal affairs, the Minister may order the expulsion of any recognised refugee from Uganda in the interest of national security and public order. Although in section 40(2) the refugee is allowed to make his/her case against such a decision through his/her legal representation or the UNHCR, there is no room to appeal the decision of the Minister after such representation. Also, the Refugee Act (2006) is precise in Section 42, concerning those accorded the right of non-refoulement (recognised refugees). The Act is silent on asylum seekers, making them vulnerable to refoulement. In addition, there are documented cases in Uganda of refugees extradited without due legal process. For example, from 2005 to 2018, the Ugandan police force was infiltrated by Rwandan officials and systematically conducted abduction and illegal repatriation of refugees and asylum seekers (Lt. Joel Mutabazi, Joel Mutabazi, Jackson Karemera, Sgt. Innocent Karisa, Oliver Sebakara, Protais Hakizimufura) (Ahimbisibwe & Belloni, 2020). These are people who were supposed to be protected by the state. This security bridge, facilitated by internal forces within the government, violates the principle of non-refoulement. Furthermore, the application of the cessation of hostilities clause that uses a blanket approach to revoke the refugee status of a particular country is a flawed process tantamount to an act of refoulement. For example, the repatriation of Rwandan refugees on these grounds, who have suffered persecution in their home country. The above analysis highlights the mismatch between the law and practice.
Access to Social Services (Education & Health)
Like in South Africa, access to education in Uganda is a fundamental human right principle echoed in several legislative and policy frameworks. For example, Articles 30 and 34 of the 1995 Ugandan Constitution entitle every child to access basic education. The introduction and implementation of the Universal Primary Education (UPE) policy of 1997 and the Universal Secondary Education Policy of 2007 by the national government provided universal access to basic and secondary education to all, including refugees and asylum seekers. The Refugee Act (2006), Section 29(1)(e)(iii) explicitly states that refugee children are granted equal access to basic education as nationals. The Education Act of 2008, Section 4(2) emphasizes universal access to basic education, and Section 9(1) states that primary and post-primary institutions are free of charge. Furthermore, in 2018, the Ministry of Education and Sports introduced the Education Response Plan (ERP) for refugees and host communities, which seeks to ensure improved learning outcomes for refugees and host communities. However, despite the extensive legal landscape specifying the right to universal access to education, the 2006 Refugee Act in section 29(1)(e)(iii) provides for both universal access to basic education but also, in section 29(1)(e) subjects refugees seeking secondary education to the same treatment accorded to aliens in similar circumstances (that is, if they can afford) and this is a contradiction to the Universal Secondary Education Policy of 2007 and the Education Act of 2008. Also, fees are charged for children to write national exams at the end of both primary and secondary school, and in some schools, additional charges for registration, development, and feeding schemes are introduced (Agaba, 2024). These costs contribute to the dropout rate of refugee children who cannot afford them.
Uganda has a decentralised health system structured into three tiers: national referral hospitals, regional referral hospitals, and district hospitals, complemented by health centers. Although the 2006 Refugee Act does not explicitly spell out the rights of refugees and asylum seekers concerning access to healthcare, Section 28 of the Act requires the state to uphold the rights of refugees and asylum seekers as stipulated in international conventions to which Uganda is a party. To this effect, the state is mandated to uphold the rights to healthcare access as stipulated in the 1951 UN Convention, which states that refugees should have access to the same or similar healthcare as nationals. Furthermore, in line with the Comprehensive Refugee Response Framework (GRRF) of 2016 rooted in its vision of shifting from a purely humanitarian response to a more inclusive and sustainable approach to managing the refugee situation, Uganda was one of the first countries to fully integrate refugees into its national sector planning (The Republic of Uganda, 2022). To this effect, the Ministry of Health developed the Health Sector Integrated Refugee Response Plan (HSIRRP (2019-2024), which is aligned with the National Health Policy and the Health Sector Development Plan, designed to provide healthcare services for refugees and host communities at the district level. Emphasis is placed on preventive and promotive healthcare, including services such as vaccination, nutrition, emergency referrals, lifesaving PHC, surveillance, and management of disease outbreaks (Kmakech et al., 2024). Although the health system in Uganda is structured in a way that seeks to integrate and respond to the health needs of refugees and host communities, it is subject to several challenges, including inadequate health services to address specific refugee health concerns like post-traumatic stress disorder, and some of the facilities are underequipped.
LEGAL FRAMEWORK ON CHILDREN ON THE MOVE (UNACCOMPANIED AND SEPARATED CHILDREN) IN SOUTH AFRICA AND UGANDA
Introduction
Due to the ongoing emerging crisis in several parts of Africa (conflict, violence, and disasters), there is a substantial number of children on the move, both internally and internationally, in need of protection. There are an estimated 6.2 million children on the move in Africa, constituting 1 in 4 international migrants on the continent (UNICEF, 2024). According to the Population Division of the United Nations, as cited by UNICEF (2024), Uganda and South Africa are among the top ten host countries of international child migrants in Africa(ibid). Uganda and South Africa, therefore, become interesting sites to investigate the dynamics of child migration on the continent. The concept of unaccompanied and separated migrants is a very nuanced and complex one. These concepts are not fixed, as their meaning changes over time. The General Comment No.6 (2005) to the UN Convention on the rights of the child defines unaccompanied children “as children who have been separated from both parents and other relatives and are not being cared for an adult who, by law or custom, is responsible for doing so” and it defines separated children “as children who have been separated from both parents, or from their previous legal or customary primary care-giver, but not necessary from other relatives” (Ackermann, 2018:976). These may, therefore, include children accompanied by other family members. Ackermann (2018:979) identifies four main trends that contribute to the migration of unaccompanied and separated children, with the leading motivation being conflict-related (44%), socio-economic reasons, death of primary caregiver in the country of origin, and abandonment in the country of origin. These categories of children are vulnerable and in need of protection. There are both international and national legal frameworks designed to protect these children.
International & National Legal Framework (South Africa & Uganda)
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South Africa |
Uganda |
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Children on the Move |
642,000 in 2023 (UNICIF, 2023) |
928,000 in 2020 (UNICEF, 2024) |
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Intl. Legal Framework |
1951 UN Convention & 1967 Protocol Relating to the Status of Refugees
1989 Convention on the Rights of the Child
African Charter on the Rights and Welfare of the Child (ACRWC), 1990
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(Cont.) |
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International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)
Convention Relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness, 1961 Improve the status and rights of stateless persons, including children on the move |
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National Legal Framework |
Constitution of the Republic of South Africa, 1996 and the Bill of Rights
Children’s Act, No. 38 of 2005
The Refugee Act 130 of 1998 and its amendments
Births and Deaths Registration Act 51 of 1992
Schools Act 84 of 1996
Citizenship Act 88 of 1995
Immigration Act 13 of 2002
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Constitution of the Republic of Uganda, 1995 Children Act Cap 59 (Amended in 2006 & 2018)
The Refugee Act of 2006 and the Refugee Regulations 2010
Universal Primary Education (UPE) policy of 1997 and the Universal Secondary Education Policy of 2007
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Figure 5: International & National legal framework on the protection of children on the move in South Africa and Uganda
South Africa
The majority of the provisions in the South African Constitution relate to everyone within the country, including children on the move. Due to scarce data, the number, demographics, and circumstances of children on the move, including unaccompanied and separated migrant children in South Africa, are very sketchy. In South Africa, the courts determine the care and protection of unaccompanied and separated migrant children, and children are often placed in Child and Youth Care Centers (CYCC) or in community-based foster care. Several key protection mechanisms, including Child Protection Services, Social Services, and Detention Alternatives, are put in place to enforce the legal framework. These legal frameworks are established to facilitate access to services, including family tracing, documentation, birth registration, healthcare, education, and statelessness.
Access to documentation
The law provides that all children, including unaccompanied and separated children with or without documentation, must be assisted like any other child in the country. Chapter 11 of the Children’s Act provides for alternative care, which is the placement of children with someone who is not their parents and in the case of unaccompanied and separated children, such a child will be placed under the foster care of such person or CYCC in terms of a court order. However, separated children may be in need of care and not necessarily an alternative care and therefore they may not need to be placed in a CYCC or a foster care. For example, if family members are willing to accommodate the separated child. Obtaining a court order is important before placing a child because it allows the child to access basic services while under care. The documentation of the unaccompanied or separated child is important as it facilitates and eases the child’s access to services within the country. There are two options through which unaccompanied and separated children can access documentation in South Africa: (a) through the asylum-seeking process or (b) through the Permanent Residence Exemption process.
Figure 6: Access to documentation for Unaccompanied and Separated Children in South Africa
Article 22 of the CRC and Article 23 of ACRWC place an obligation on the state to protect unaccompanied and separated children seeking asylum, and the South African Refugee Act of 1998 has domesticated these provisions in terms of Section 21A, which provides for unaccompanied and separated children where it state under section (1) that any unaccompanied child who is found under circumstances that indicate that he/she is an asylum seeker in need of care and protection as contemplated in the children’s Act must (a) be issued with an asylum seeker visa in terms of section 22; and (b) in the prescribed manner, be brought before` the Children’s Court in the district which he/she was found. However, this section is silent and does not provide clear details on how the process of documentation should unfold. As a result, the law has been misinterpreted by the DHA to mean an order must first be obtained from the Children’s court in terms of section 46(1)(h)(viii) of the Children’s Act instructing the DHA to allow the child to apply for asylum (Rayner & Moyo, 2023). According to the Standard Operating Procedure, if a civil society partner and a social worker make an assessment and conclude that the child is an asylum seeker, they will prepare the child to go to the Department of Home Affairs at the Refugee Reception Office and the child must receive a renewable temporary asylum seeker visa (section 22) and commence an asylum process. Once the child with a section 22 visa is ready for an interview, it is conducted by a Refugee Status Determination Officer (RSDO) in a safe space in the presence of a social worker and, where appropriate, with a legal representative (Republic of South Africa, 2024).
Not all unaccompanied or separated child migrants are asylum seekers. Therefore, such categories of migrants will not be eligible for asylum. However, documenting the child is also very important if attempts to trace the family are not feasible. Under such circumstances, the only option to document the child is to apply for Permanent Resident Exemption. Section 31(2)(b) of the Immigration Act of 2002 gives the Minister of Home Affairs the power to grant a foreigner permanent resident status when special circumstances exist which justify such a decision. Although the law provides for this option, it is a difficult path to follow, risking the child becoming stateless.
Family Tracing and Reunification
Family tracing remains the most viable option in law and policy for unaccompanied and separated children, provided the child is not an asylum seeker or a refugee. Several international legislations, including the Convention on the Rights of the Child (CRC), which South Africa is a party state that family tracing and reunification are essential for a child's psychological, cognitive, and physical development, if such a decision is in the best interest of the child, as highlighted in Article 7 & 22 of the CRC Act. In South Africa, according to the Standard Operating Procedure Guideline, family tracing and reunification remain the durable solution to unaccompanied and separated children in the country (Republic of South Africa, 2024). The guideline details the processes through which tracing and reunification can happen in the country, as explained below.
Figure 7: Family tracing in South Africa (Cross-border tracing)
Other options for family reunification, which are also subject to legal due process to establish the ability and willingness to take care of the child, include reunification with other family members in the host country or a family member in a third country (not the country of origin or country of host). The family or international organisations cover the cost of repatriation if the family is unable. There is also the option of appropriate alternative care in the country of origin (care-to-care transfer). Although provided in the guideline, no empirical data indicates that this option has been explored in South Africa. This option remains a viable pathway for family reunification. However, one of the challenges of family tracing and reunification is that ISS counterparts are not operational in several African states.
Birth registration
Birth registration is a fundamental right that ensures a child's legal identity and access to essential services, including education and health. Birth registration in South Africa is the exclusive responsibility of the Department of Home Affairs. The three legal frameworks on birth registration in South Africa are the Birth and Death Registration Act 51 of 1992 (BDRA) (which provides processes of birth registration in South Africa to all who live in it), the Identification Act 68 of 1997 (which governs the registration and management of personal identification), and the South African Citizenship Act 88 of 1995 (SACA) (which govern the acquisition, loss, and resumption of South African citizenship).
In line with its international obligation, for example, the CRC in article 7(1) which states that “the child shall be registered immediately after birth and shall have the right to a name, the right to acquire nationality, and, as far as possible, the right to know and be cared for by his or her parents”, the Constitution of South Africa in section 28(1)(a) domesticate the international article by stating that every child has a right to a name and nationality at birth. The BDRA in Section 9 requires that parents provide notice of the child’s birth within 30 days or one year, if later. The law also provides that, with the assistance of a social worker, family members or a legal guardian can also register the child’s birth if the parents are unable or deceased. There are two types of birth certificates issued: computerized and handwritten. While the computerized birth certificates of South Africans are captured using technology and saved in the population registry, the handwritten birth certificates are issued to children of foreign parents who are not South African citizens or asylum seekers. Regulations 8(3)(d) and (e) of the BDRA Act require that foreign parents produce a valid visa or asylum/refugee visa as a prerequisite to birth registration. This regulation implies that undocumented parents will not be able to register their children. The regulation also requires that non-South Africans be issued birth certificates without an identity number. Furthermore, the regulation required that the father cannot register the birth of their child without the mother’s involvement. This restrictive policy prevents the birth registration of children of undocumented migrants and single fathers. However, this requirement has been challenged in the case of the Centre for Child Law v Director General: Department of Home Affairs, where the courts decided that the regulation was not in the best interest of the child, as their rights, based on the regulation, were an extension of their parents' rights. As interpreted by the court, the regulation significantly emphasizes the parents' rights rather than the child's. The court decided that the Department of Home Affairs had to change its birth registration policies to allow the father to register their children. Despite the legal provision that allows for a single parent to register the birth of their child, in practice, the Department of Home Affairs is still restricting single fathers from enjoying this right (Scalabrini Centre of Cape Town, 2019)
Although BDRA provides room for late birth registration, the process is demanding and can take several months to a year to finalize due to the backlog. This increases the child's vulnerability, as the child might have limited or restricted access to certain essential services.
Statelessness
Although South Africa is not a party to several conventions aimed at addressing the complex issues relating to statelessness, like the Convention Relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961), South Africa, at least in theory, through its legal framework, has established regulations that seeks to prevent non-South Africans resident in the country to become stateless. For example, section 2(2) of the amended Citizenship Act states that “Any person in the republic who is not a South African Citizen under the provisions of subsection (1) shall be a South African citizen by birth, if __ (a) he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality; and (b) his or her birth is registered in the republic in accordance with the Births and deaths Registration Act, 1992. However, section 4(3)(a) and (b) in the amended Act provide additional requirements through which such citizenship by birth can be acquired, namely, such children can apply for citizenship upon becoming a major (reaching the age of 18) and whose birth is legally registered in the Republic. Rayner & Moyo (2023) posit that to date, these regulations have not been promulgated despite the court order issued in the case of DGLR v Minister of Home Affairs. Also, the challenges of registering births in South Africa, as highlighted above, increase the risk, particularly, of children born to non-South African parents becoming stateless.
Uganda
Unlike South Africa, which has developed a comprehensive legal framework that protects children on the move, and specifically unaccompanied and separated children, Uganda’s legal framework on the protection of unaccompanied and separated children is more aligned with international child protection and refugee standards. These legal frameworks provide protection to children on the move through different processes, including access to documentation, family tracing and reunification, access to education and health, access to birth registration, and prevention of statelessness.
Access to documentation
Several processes are involved in the documentation of children on the move in Uganda, specifically unaccompanied and separated children (UASC). Uganda has 40 ports of entry, of which refugees and asylum seekers from the Democratic Republic of Congo, Sudan, and South Sudan (three countries with the highest refugee population in the country) predominantly arrive through the border entry post at Kisoro, Lokung, and Bundibugyo, while the urban refugees are mostly received in Kampala (UNHCR, 2024). Article 34 of the 2005 Constitution of Uganda and the Ugandan Children’s Act (Cap 59) as amended in 2016 & 2018 in section 42(A), specifically provides for the protection of children in Uganda, including unaccompanied and separated migrant children. Access to documentation is central to providing protection and upholding the rights of children on the move. In Uganda, the process of documenting unaccompanied and separated migrant children is done by the government in partnership with UNHCR and its implementing partners. Wahis (2017) provides a comprehensive explanation of the processes of documenting UASC in Uganda as indicated below.
Figure 8: Access to documentation for Unaccompanied and Separated Children in Uganda
Kagan & Shanee (2024) posit that Uganda Operational Manual for Youth and Probation and Social Welfare Officer, Article 43 states that a child without a parent or guardian may be fostered by a relative without a formal agreement. However, foster care by unrelated foster carers must be authorised by a competent administrative body, judiciary, or statutory body, under the supervision of welfare and probation personnel. However, the government does not enforce this role. As a result, children in alternative care are maltreated, exploited, and victimised.
Family Tracing and Reunification
Family tracing remains the most viable option in law and policy for unaccompanied and separated children. Several international legislations, including the Convention on the Rights of the Child (CRC), which Uganda is a party to, argue that family tracing and reunification are essential for child psychological, cognitive, and physical development if such a decision is in the Best Interest of the Child. Article 7 of the CRC states that every child has the right to know and be cared for by his or her parent, and Article 22 requires states, UN agencies, and NGOs to work together to trace the parents of other family members of any separated refugee child to facilitate family reunification. In Uganda, family tracing and reunification are crucial due to the huge numbers of children on the move in the country. Section 4(1) of the Children's Act in Uganda states that every child shall have the right to live with their parent or guardian. The process of family tracing and reunification of unaccompanied and separated migrant children in Uganda is predominantly implemented by international organisations. All Unaccompanied and separated children with reunification needs within Uganda, including intra or inter-settlement reunification, are referred to the Ugandan Red Cross, while the International Committee of the Red Cross (ICRC) has the mandate for cross-border tracing.
Birth Registration
Birth registration is the first step in securing a child's legal identity and supports access to essential services. The registration of births and deaths in Uganda is governed by the Registration of Persons Act 2015, which provides for compulsory registration of births, deaths, and national identification. The Act mandates the National Identification and Registration Authority (NIRA), among other things, to manage the country’s national identification and registration system, to assign a unique National/Alien identification number to every person registered in the register. The local civil registration offices of births and deaths are located at one of the 116 district offices in the country. The Act in section 7(1) provides that the birth of a child should be registered within three months of the child's birth. Other legal frameworks that mandate the birth registration of a child in Uganda include the Children’s Act in section 4(1)(e), which states that every child shall have the right to a name and nationality, including children on the move, the 1995 Constitution of Uganda as amended in article 18 provides that the state shall register every death, marriage, and birth occurring in Uganda. Concerning refugee children, the following documents are required to register their birth: a birth notification record, the NIRA form 3 ‘Notice of birth of a child’, a photocopy of a valid refugee family attestation card or refugee ID card, and any other information that might be required (Norwegian Refugee Council, 2024). Unlike immigrants and nationals who are required to pay a birth certification fee, it is free for refugees. Although the above requirements exempt undocumented asylum seekers from registering the birth of their children, the law provides that if there is a declaration of intent with the OPM or UNHCR to apply for a refugee document, such a parent can register the birth of their child. For example, in October 2023, through the initiative of the Norwegian Refugee Council, NIRA, the OPM, and other partners joined forces to issue 2,440 birth certificates to undocumented refugee children under the age of 5 (Norwegian Refugee Council, 2024). Despite these provisions, refugees encounter several challenges in the process of birth registration, including the cost of transportation, as the settlements are in rural areas, while the NIRA offices are in the districts, far from the settlements.
Statelessness
Uganda is a party to several international conventions that provide protection against statelessness. For example, Uganda acceded to the 1954 Convention Relating to the Status of Stateless Persons, which protects the rights of stateless persons, the 1989 UN Convention on the Rights of the Child and the 1990 African Charter on the Rights and welfare of the Child which seeks to prevent statelessness by ensuring that every child has the right to a name and nationality. These international legal frameworks have been domesticated by national legal frameworks, including the 1995 Ugandan Constitution and the 2006 Children's Act, which makes birth registration in Uganda compulsory. Despite these legal provisions, several gaps in the law contribute to statelessness in Uganda. For example, most refugees flee their countries of origin without any documentation (birth certificate, passport, or ID) that can link them to their country of origin, and in their host country, they are given a refugee identification document. Although a refugee document facilitates access to services in the host country, it does not give the holder a nationality status. In countries where pathways to nationality are very stringent, it increases the risk of statelessness. For example, Section 16(5)(a) of the Uganda Citizenship and Immigration Control Act of 2000 indicates that one of the requirements for the acquisition of citizenship by naturalisation is that such an applicant must have resided in Uganda for an aggregate period of 20 years. Between these time frames, the person runs the risk of becoming stateless if, for example, their refugee status is revoked. In essence, the refugee ID conceals the risk of statelessness. Furthermore, although the Citizenship and Immigration Control Act recognises foundlings, it only gives citizenship to children below the age of 5 as interpreted in section 13(1)(a), eliminating the chances of thousands of unaccompanied and separated children, who are above the age of 5, from acquiring citizenship. Thus, increasing their risk of becoming stateless.
Conclusion
Forceful displacement in Africa constitutes a serious crisis that adversely affects a cross-section of the population, including children and women. This vulnerable population, displaced from their home countries, depends on their host countries for protection. Their protection is governed by the legal policy framework in their host countries. Although Uganda has been praised for its open-door policies and South Africa lauded for its progressive refugee policies, refugees, asylum seekers, and children on the move are still confronted with several challenges in the respective countries. In Uganda and South Africa, several policies are designed that flow from international, continental, regional, and national levels. Despite the establishment of these policies, there are several gaps in the legal frameworks that compromise the protection of asylum seekers, refugees, and children on the move. Some of the policy gaps include the fact that some policies contradict, undermine, or interfere with each other, a complete disregard of existing policies by some government officials, and limited enforcement mechanisms. The absence of a comprehensive legal framework to protect the rights of refugees, asylum seekers, and children on the move increases their vulnerability. The formulation of policies for the protection of refugees, asylum seekers, and children on the move without proper mechanisms for their implementation undermines the policy goals.
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Acknowledgements
This desk review is part of the Enhancing Protection and Asylum Project, implemented through the MMD Grant Facility of the International Centre for Migration Policy Development (ICMPD) and co-funded by the European Union with the aim of strengthening the implementation of asylum systems and the protection of children on the move emphasizing capacity building, dialogues and advocacy guided by engaged research. Our appreciation to our implementing partners; the Scalabrini Centre of Cape Town, Consortium for Refugees and Migrants in South Africa (CORMSA), Catholic Centre for Legal Aid Services (CCLAS) Uganda and the Jesuit Refugee Service (JRS) Uganda.