International Human Rights Law and the Access of Children of Asylum Seekers to Social Assistance in South Africa

Abstract

There is a massive presence of asylum seekers in South Africa. Amongst this population are children who need social assistance from the state distributed as ‘grants’, due to their dependence, vulnerability and developmental requirements. South Africa is a state party to international instruments on human rights and has a regulatory framework including the Constitution which allows for the application of these instruments and guarantees the right to social security for everyone. This article focuses on whether the existing corpus of international instruments on human rights and relevant domestic regulatory frameworks may allow children of asylum seekers the access to social assistance in South Africa. While demonstrating that the access to social assistance for children of asylum seekers is implied under international human rights instruments, the article establishes that this has not found expression in the application of existing legislation on social assistance in South Africa. By deploying an appropriate interpretive approach, courts may respond to this normative gap and thereby assist in guaranteeing the access of these children to social assistance in South Africa.