South Africa: Victory in Fight for citizenship of Foreign National Children

Published: 30/Nov/2018
Source: Legal Resources Centre

Minister of Home Affairs v Miriam Ali

Today, the Supreme Court of Appeal handed down judgment confirming the Western Cape High Court’s (WCHC) position, which provides that children born in South Africa to foreign national parents are entitled to apply for citizenship, through the South African Citizenship Act 88 of 1995 (Citizenship Act or the Act), even if they were born before 2013.

The LRC represented five (5) persons who were born in South African before 2013 when the Citizenship Act was amended. These were respondents in this appeal hearing before the SCA. Because of the interpretation adopted by DHA the respondents were prohibited from applying for citizenship in terms of section 4(3) of the Citizenship Act which provides that:

“A child born in the Republic of South Africa of parents who are not South African citizens or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if –
(a)       he or she has lived in the Republic from the date of his or her birth to the date of becoming a major;
(b)       his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992 (Act 51 of 1992).”

The court rejected the position adopted by the Department of Home Affairs who interpreted the amendment of the Citizenship Act to infer that only children born after 2013 were able to apply for citizenship in terms of section 4(3) of the Citizenship Act. The SCA affirmed that ”it is not in the interest of justice and neither is it just and equitable to send the respondents from pillar to post simply because the Minister has adopted a supine attitude that the regulations will only be promulgated in due course.”

The matter was before the WCHC which held that DHA is to enact the necessary form/s to allow for applications in terms of section 4(3) and to accept applications on affidavit pending he enactment of the form/s.  This was argued to encroach the principles of separation of powers by DHA. The SCA confirmed that the order of the High Court does not encroach upon the separation of powers where the Minister was ordered to provide for a procedure enabling an application for acquisition of citizenship based on birth and residence in the territory until majority, as provided in the Act.

Accordingly, the SCA dismissed the appeal with costs. The Minister of Home Affairs was ordered to make regulations in terms of section 23(a) of the Act to make provisions for application for naturalization in terms of section 4(3) of the Act. The Court also ordered the DHA to accept applications for naturalisation by the respondents and others similarly placed pending the promulgation of the regulations.

We welcome the judgment which confirms the rights of our clients to nationality and ensure that they are not to be rendered stateless through restrictive interpretation of nationality laws. We are encouraged by the emphasis placed on the respondents right to equality and to be treated with dignity – these rights apply to all persons regardless of their nationality.

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Themes: Acquisition of nationality, Acquisition by children
Regions: South Africa
Year: 2018