Family Reunification in South African Refugee Law: a Critical Appraisal
Keywords:
Family reunification, refugees, asylum seekers, marriages, refugee integrationAbstract
Family reunification and family unity are not provided for in international refugee law. During refugee flight, family members often separate due to the circumstances that force them to leave their country and seek asylum in another country. Spouses, as well as children, often find themselves in different countries. Refugees and asylum seekers need to reunite with their families to ensure their protection and well-being. Some refugees and asylum seekers experience challenges in marrying persons of their choice as the country of asylum may not facilitate the realisation of their family unity and family reunification. In this paper, it is argued that South African law and state practice are inadequate in facilitating family reunions, hence it is submitted that there is a need for South African parliament to amend its laws in order to provide for family reunification and unity in refugee issues.
References
Literature
Abram, E.F. (1995). The Child’s Right to Family Unity in International Immigration Law. 17 (4) Law and Policy, pp. 397 – 440.
Anderfuhren-Wayne, C.S. (1996). Family Unit in Immigration and Refugee Matters: United States and European Approaches. 8 (3) International Journal of Refugee Law, pp. 347 – 382.
Boniface A. & Rosenberg W. (2010). The Challenges in Relation to Undocumented Abandoned Children in South Africa. 1 TSAR, pp. 41 – 62.
Danica S. and Marija A. (2020). Serbia in the Time of COVID-19: Between “Corona Diplomacy”, Tough Measures and Migration Management. 61 (4-5) Eurasian Geography and Economics, pp. 546 – 558.
Expert Roundtable, “Global Consultation on international protections” 2001. Available at https://www.unhcr.org/protection/globalconsult/3c3d556b4/summary-conclusions-family-unity.html (accessed on 11 August 2020).
Guadagno L. (2020). Migrants and the COVID-19 Pandemic: An Initial Analysis. 60 Migration Research Series, pp. 1 – 25.
Khan, F. (2011). Reunification of Refugee Family in South Africa: a Legal Right? 28 (2) Refuge, pp. 77 – 91.
Lambert, H. (1999). The European Court of Human Rights and the Rights of Refugees and Other Persons in Need of Protection to Family Reunion. 11 (3) International Journal of Refugee Law, pp. 427 – 450.
MacGregor M. (2020). Luxembourg to take in first children from Greek migrant camps. Available at https://www.infomigrants.net/en/post/23922/luxembourg-to-take-in-first-children-from-greek-migrant-camps (accessed on 8 January 2021).
NCNat, Z., Boothby, N., Al-Shannaq, H., Chandler, H., Freels, P., Mohmoud, A., Majdalani, N., and Zebi, L. (2018). Impact of Separation on Refugee Families Syrian Refugees in Jordaan, pp. 1 – 25.
Rohan M. (2014). Refugee Family Reunification Rights: a Basis in the European Court of Human Rights’ Family Reunification Jurisprudence. 15 (1) Chicago Journal of International Law, pp. 347 – 375.
UNHCR. (2001) “Summary conclusion on family unit”, pp. 1 – 3. Available at https://www.unhcr.org/protection/globalconsult/3c3d556b4/summary-conclusions-family-unity.html (accessed on 11 August 2020).
Wallis E. (2020). Who will be on the list of 1,600 refugees relocated from Greece? Available at https://www.infomigrants.net/en/post/23468/who-will-be-on-the-list-of-1-600-refugees-relocated-from-greece (accessed on 8 January 2021).
Wilmsen B. (2011). Family Separation: the Policies, Procedures, and Consequences for Refugee Background Families. 30 (1) Refugee Survey Quarterly, pp. 44 – 64.
Legislation
Births and Deaths Registration Act 51 of 1992
Civil Marriages Act 25 of 1961
Civil Union Act 17 of 2006
Recognition of Customary Marriages Act 120 of 1998
Refugee Regulations 2018 (27 December 2019)
Refugees Act 130 of 1998
Case law
Centre for Child Law v Director – General: Department of Home Affairs and Others 2020 8 BCLR 1015 (ECG)
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 3 SA 936 (CC)
Fourie and Another v Minister of Home Affairs and Others 2005 3 SA 429 (SCA)
Harksen v Lane NO and Others 1998 1 SA 300 (CC)
Minister of Home Affairs and Others v Scalabrini Centre, Cape Town and Others 2013 6 SA 421 (SCA)
Minister of Home Affairs and Others v Somali Association of South Africa and Another 2015 3 SA 545 (SCA)
Minister of Home Affairs and Others v Watchenuka and Another 2004 4 SA 326 (SCA)
Mubake and Others v Minister of Home Affairs and Others 2016 2 SA 220 (GP)
Mzalisi NO and Others v Ochogwu and Another 2020 3 SA 83 (SCA)
Nandutu and Others v Minister of Home Affairs and Others 2019 5 SA 325 (CC)
Satchwell v President of the Republic of South Africa and Others 2002 6 SA 1 (CC)
International instruments
African Charter on Human and Peoples’ Rights, 1981
African Charter on the Rights and Welfare of the Child, 1990
American Convention on Human Rights, 1969
Article 74 of Protocol Additional to the Geneva Convention of 1949
Convention on the Rights of the Child, 1989
Convention Relating to the Status of Refugees, 1951
European Convention on Human Rights, 1950
European Social Charter, Revised, 1996
International Covenant on Civil and Political Rights, 1966
International Covenant on Economic, Social and Cultural Rights, 1966
OAU Convention Governing the Specific Aspects of Refugees in Africa, 1969
Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), of 8 June 1977
Universal Declaration of Human Rights, 1948
Abram, E.F. (1995). The Child’s Right to Family Unity in International Immigration Law. 17 (4) Law and Policy, pp. 397 – 440.
Anderfuhren-Wayne, C.S. (1996). Family Unit in Immigration and Refugee Matters: United States and European Approaches. 8 (3) International Journal of Refugee Law, pp. 347 – 382.
Boniface A. & Rosenberg W. (2010). The Challenges in Relation to Undocumented Abandoned Children in South Africa. 1 TSAR, pp. 41 – 62.
Danica S. and Marija A. (2020). Serbia in the Time of COVID-19: Between “Corona Diplomacy”, Tough Measures and Migration Management. 61 (4-5) Eurasian Geography and Economics, pp. 546 – 558.
Expert Roundtable, “Global Consultation on international protections” 2001. Available at https://www.unhcr.org/protection/globalconsult/3c3d556b4/summary-conclusions-family-unity.html (accessed on 11 August 2020).
Guadagno L. (2020). Migrants and the COVID-19 Pandemic: An Initial Analysis. 60 Migration Research Series, pp. 1 – 25.
Khan, F. (2011). Reunification of Refugee Family in South Africa: a Legal Right? 28 (2) Refuge, pp. 77 – 91.
Lambert, H. (1999). The European Court of Human Rights and the Rights of Refugees and Other Persons in Need of Protection to Family Reunion. 11 (3) International Journal of Refugee Law, pp. 427 – 450.
MacGregor M. (2020). Luxembourg to take in first children from Greek migrant camps. Available at https://www.infomigrants.net/en/post/23922/luxembourg-to-take-in-first-children-from-greek-migrant-camps (accessed on 8 January 2021).
NCNat, Z., Boothby, N., Al-Shannaq, H., Chandler, H., Freels, P., Mohmoud, A., Majdalani, N., and Zebi, L. (2018). Impact of Separation on Refugee Families Syrian Refugees in Jordaan, pp. 1 – 25.
Rohan M. (2014). Refugee Family Reunification Rights: a Basis in the European Court of Human Rights’ Family Reunification Jurisprudence. 15 (1) Chicago Journal of International Law, pp. 347 – 375.
UNHCR. (2001) “Summary conclusion on family unit”, pp. 1 – 3. Available at https://www.unhcr.org/protection/globalconsult/3c3d556b4/summary-conclusions-family-unity.html (accessed on 11 August 2020).
Wallis E. (2020). Who will be on the list of 1,600 refugees relocated from Greece? Available at https://www.infomigrants.net/en/post/23468/who-will-be-on-the-list-of-1-600-refugees-relocated-from-greece (accessed on 8 January 2021).
Wilmsen B. (2011). Family Separation: the Policies, Procedures, and Consequences for Refugee Background Families. 30 (1) Refugee Survey Quarterly, pp. 44 – 64.
Legislation
Births and Deaths Registration Act 51 of 1992
Civil Marriages Act 25 of 1961
Civil Union Act 17 of 2006
Recognition of Customary Marriages Act 120 of 1998
Refugee Regulations 2018 (27 December 2019)
Refugees Act 130 of 1998
Case law
Centre for Child Law v Director – General: Department of Home Affairs and Others 2020 8 BCLR 1015 (ECG)
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 3 SA 936 (CC)
Fourie and Another v Minister of Home Affairs and Others 2005 3 SA 429 (SCA)
Harksen v Lane NO and Others 1998 1 SA 300 (CC)
Minister of Home Affairs and Others v Scalabrini Centre, Cape Town and Others 2013 6 SA 421 (SCA)
Minister of Home Affairs and Others v Somali Association of South Africa and Another 2015 3 SA 545 (SCA)
Minister of Home Affairs and Others v Watchenuka and Another 2004 4 SA 326 (SCA)
Mubake and Others v Minister of Home Affairs and Others 2016 2 SA 220 (GP)
Mzalisi NO and Others v Ochogwu and Another 2020 3 SA 83 (SCA)
Nandutu and Others v Minister of Home Affairs and Others 2019 5 SA 325 (CC)
Satchwell v President of the Republic of South Africa and Others 2002 6 SA 1 (CC)
International instruments
African Charter on Human and Peoples’ Rights, 1981
African Charter on the Rights and Welfare of the Child, 1990
American Convention on Human Rights, 1969
Article 74 of Protocol Additional to the Geneva Convention of 1949
Convention on the Rights of the Child, 1989
Convention Relating to the Status of Refugees, 1951
European Convention on Human Rights, 1950
European Social Charter, Revised, 1996
International Covenant on Civil and Political Rights, 1966
International Covenant on Economic, Social and Cultural Rights, 1966
OAU Convention Governing the Specific Aspects of Refugees in Africa, 1969
Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), of 8 June 1977
Universal Declaration of Human Rights, 1948
Published
2021-03-19
How to Cite
Kanamugire, J. C., & Mbao, M. L. (2021). Family Reunification in South African Refugee Law: a Critical Appraisal: Array. Acta Universitatis Danubius. Juridica, 17(1). Retrieved from https://dj.univ-danubius.ro/index.php/AUDJ/article/view/775
Issue
Section
Studies and Articles
License
The author fully assumes the content originality and the holograph signature makes him responsible in case of trial.
