SA-born chil­dren’s bat­tle for cit­i­zen­ship

Kids born to for­eign par­ents are in dan­ger of be­ing left state­less

Weekend Argus (Saturday Edition) - - FRONT PAGE - BRONWYN DAVIDS

IT IS feared thou­sands of South African-born chil­dren are in state­less limbo be­cause they have for­eign par­ents.

These chil­dren get hand­writ­ten birth cer­tifi­cates, not the printed ones with an ID num­ber is­sued to South African chil­dren.

With­out an ID num­ber these chil­dren can­not ma­tric­u­late, can­not open a bank ac­count and can­not even get a li­brary card. Their par­ents can­not claim the child grant and it is dif­fi­cult to find a school will­ing to take them.

But the tide is turn­ing in their favour with var­i­ous bod­ies in­clud­ing the SA Hu­man Rights Com­mis­sion, Lawyers for Hu­man Rights and the Le­gal Re­sources Cen­tre tak­ing up their cause.

Ear­lier this month, the Western Cape High Court ruled that chil­dren born to for­eign par­ents were en­ti­tled to ap­ply for cit­i­zen­ship through the South African Cit­i­zen­ship Act 88 of 1995 Sec­tion 4(3). The Le­gal Re­sources Cen­tre brought a case against Home Af­fairs Min­is­ter Hlengiwe Mkhize and the di­rec­tor-gen­eral on be­half of a group of chil­dren, all born be­fore 2013 and all with birth cer­tifi­cates show­ing they were born in this coun­try.

The court di­rected the de­part­ment to ac­cept the cit­i­zen­ship ap­pli­ca­tions of Miriam Ali, Aden Nuredin Salih, Kanu Teka, Jorsen Nkololo, Farieda Nsoki, Car­o­line Ma­suku and Mur­phy Ngaga.

Another case mak­ing its way through the courts is that of an 8-year-old girl, Daniella, who was born here to Cuban par­ents who were un­aware that Cuba does not ac­cept for­eign-born chil­dren as cit­i­zens. Both the North Gaut­eng High Court in Pre­to­ria and the Supreme Court of Ap­peal (SCA) have or­dered she be granted South African cit­i­zen­ship, but the de­part­ment is re­sist­ing this. Now the Hu­man Rights Com­mis­sion is to meet Home Af­fairs rep­re­sen­ta­tives to thrash out the en­tire is­sue of chil­dren born in South Africa to for­eign par­ents.

Hu­man Rights Com­mis­sion deputy chair Priscilla Jana said: “We be­lieve chil­dren’s rights are para­mount and that no child should be prej­u­diced in any way.”

Liesl Muller, head of Lawyers for Hu­man Rights’ state­less­ness unit, refugee and mi­grant rights pro­gramme, said it was dif­fi­cult to put a fig­ure on the num­ber of chil­dren who were state­less or at risk of be­ing so be­cause they were not counted by Home Af­fairs.

“We have about 250 such cases a year. The NGO, Tholul­wazi Uzivikele, on the bor­der with Mozam­bique, said they have at least 200 cases. Part of the prob­lem is the fact that Home Af­fairs does not re­port on un­reg­is­tered births,” said Muller.

At the Scal­abrini Cen­tre in Cape Town, ad­vo­cacy of­fi­cer Lotte Man­i­com said they had about 50 cases, and many of these con­cerned clients who “have trou­ble ac­cess­ing the ser­vices avail­able to them”.

“In cases where one nonSouth African par­ent has ex­pired doc­u­men­ta­tion, their child can­not be reg­is­tered, and so the child re­mains with­out a birth cer­tifi­cate.

“If a child turns 18 with­out a birth cer­tifi­cate, they are ef­fec­tively with­out le­gal stay in the coun­try and may be li­able to de­ten­tion and de­por­ta­tion. How­ever, this be­comes com­pli­cated be­cause, if the young adult has no clear na­tion­al­ity, it is not clear which coun­try the young adult is a cit­i­zen of.

“Aside from this, the young adult can­not hold for­mal em­ploy­ment, can­not marry, can­not open a bank ac­count and more mi­nor things such as not be­ing able to have a li­brary card, for ex­am­ple,” said Man­i­com.

Muller said Lawyers for Hu­man Rights had five strate­gic cases be­ing heard in the high court con­cern­ing chil­dren, and they reg­u­larly ap­plied to the Chil­dren’s Court for is­suance of birth cer­tifi­cates.

So far this year Lawyers for Hu­man Rights has ob­tained about 15 Chil­dren’s Court or­ders for reg­is­tra­tion of births in Johannesburg and Pre­to­ria.

Last Septem­ber the or­gan­i­sa­tion won a North Gaut­eng High Court case against the de­part­ment. The court or­dered the de­part­ment to de­clare the Cuban child Daniella a South African cit­i­zen and to is­sue a birth cer­tifi­cate within a month.

The high court also or­dered that the de­part­ment change sec­tion 2(2) of the South African Cit­i­zen­ship Act within 18 months, so that other state­less chil­dren born in SA could also ap­ply for cit­i­zen­ship.

The de­part­ment ap­pealed to the SCA, which also found in favour of Daniella and or­dered the de­part­ment to obey the high court or­der.

The de­part­ment re­sponded to this set­back by bring­ing a rescis­sion ap­pli­ca­tion to the high court to have the SCA ver­dict set aside.

Muller said: “This is ir­reg­u­lar be­cause a Supreme Court of Ap­peal or­der can­not be set aside by the high court. The girl still has no cit­i­zen­ship. She has per­ma­nent res­i­dence, but the high court said that it is not the same as cit­i­zen­ship. She is still state­less and can not leave the coun­try with her par­ents.”

De­part­ment spokesman Thabo Mok­gola said the law clearly stated that a child born in South Africa to for­eign par­ents with refugee sta­tus would also re­ceive refugee sta­tus. How­ever they would not qual­ify for an unabridged South African birth cer­tifi­cate. He did not re­spond to ques­tions re­lat­ing to sta­tis­tics.

The case for for­eign-born chil­dren has been com­pli­cated by a de­part­ment in­ter­pre­ta­tion that chil­dren born be­fore 2013, when an amend­ment to the South African Cit­i­zen­ship Act 88 of 1995 be­came law, were not en­ti­tled to ap­ply for cit­i­zen­ship. But in the case brought by the Le­gal Re­sources Cen­tre for the group of young adults, the court or­dered the de­part­ment to in­ter­pret the amended act to in­clude chil­dren born be­fore 2013.

The court pointed out that the group’s con­sti­tu­tional rights were be­ing in­fringed upon, in­clud­ing the right to dig­nity and the right to ap­ply for cit­i­zen­ship.

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