SA-born children’s battle for citizenship

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

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.