South African courts confirm the right to nationality of a stateless child – 20 year old legal principle protecting stateless children is finally implemented
Source: European Network on Statelessness / Lawyers for Human Rights
By Liesl Muller, Head of the Statelessness Project at Lawyers for Human Rights
On 6 September 2016 a 4 year court battle of a stateless child to access South African citizenship came to an end. Even though South African law provides citizenship by birth to stateless children born in the territory, Daniella had to spend 4 of her 8 years fighting to be recognised.
Daniella was born in Cape Town in 2008. Both her parents are Cuban citizens. They had come to South Africa on a treaty programme which allowed engineers to work in South Africa on a special work permit. What Daniella’s parents did not know was that if they were to have a child in South Africa, their country would not recognise her to be citizen of Cuba. It was only once Daniella was born that her parents found out that the Cuban government considers those who work outside of Cuba for more than 11 months to be “permanent emigrants”. Being permanent emigrants meant that they cannot pass nationality to their child born outside of Cuba. Daniella’s parents were told that their child can only apply for citizenship in Cuba after having obtained residence in Cuba. This, according to the embassy in Johannesburg was also impossible. On the South African side, because Daniella’s parents are not South African, she was not a citizen of South Africa either.
South African law & stateless children
South African citizenship is mainly obtained through descent. Since 1949, those born to South African citizens within or outside of the country are generally considered South African citizens. With the advent of democracy in 1994, South Africa adopted the principle that all children born in South Africa who would otherwise be stateless would be South African citizens by birth. This is in line with its responsibilities in terms of the UN Convention of the Rights of the Child (Art 7) as well as the African Charter on the Rights and Welfare of the Child (Art 6). Both of these international instruments confirm the right of every child to “acquire a nationality” and urge States to ensure that children who are otherwise stateless at birth obtain the nationality of their country of birth. Commendable as this may be, without implementation the principle is meaningless.
The Department’s position
Daniella’s parents first applied for South African citizenship in line with section 2(2) (“the otherwise stateless provision”) of the Citizenship Act in 2010. This application followed the Cuban embassy’s confirmation in writing that Daniella could not obtain Cuban citizenship. The Department of Home Affairs however refused to recognise her citizenship, saying that she was not stateless. In a later meeting with the Department, they confessed that they have resolved not to implement the section, because “too many people would apply for citizenship”. The Department could not refuse to implement a section which is included in the law, but resolved to do so anyway, leading to an application in the High Court by Lawyers for Human Rights asking the Court to recognise Daniella’s pre-existing right to citizenship. The section gives citizenship to children by operation of law once all the requirements are met (born in South Africa, stateless and registration of birth).
Permanent residence a poor substitute for citizenship
One of the arguments the South African Home Affairs department offered as to why it is not necessary to give Daniella citizenship is the notion that if she had permanent residence, she would be equally protected. Apart from the fact that such denial would be unlawful and is not subject to discretion, it is also not satisfactory. That African Committee of Experts on the Rights and Welfare of the Child (ACERWC) has made it clear on two occasions (General comment 2 on Article 6 and the Nubian children case) that State Parties should not make children wait until they are 18 years of age before giving them citizenship as is the custom in many countries. Permanent residence of children in South Africa is dependent on the status of the parents, because they apply as dependants of a parent. Should the parent lose their status or die, the child would be left without a claim to permanent residence and a pathway to nationality. Making a child’s status dependent on a parent is therefore less than desirable, particularly when the child has no other option of a legal status. Importantly, permanent residence does not give the child rights to a passport, limiting her right to freedom of movement and, should the parents choose, or be forced to leave, South Africa they would have leave Daniella behind or become illegal immigrants. Other rights would also become unattainable, such as the right to education, which is accessed with a study permit in a passport of a foreigner.
A win for Daniella and other stateless children
From 1995 until 6 September 2016, the section allowing otherwise stateless children to obtain South African citizenship has been wholly defunct. An unimplemented international law compliant provision is of no use to those in need of protection. Ordinarily an Act is made accessible through the provision of an application form in the regulations to the Act. For 20 years the Department of Home Affairs has deemed it unnecessary to make a regulation to allow stateless children to apply for citizenship. The Supreme Court of Appeal, confirming the order of the High Court, has now ordered the Department to make such regulations. This regulation must be promulgated within 18 months of the order and will, once available make it possible for every stateless child to go to a local office all over South Africa to apply for citizenship without the help of an attorney. Daniella must be registered as South African within a month.
It is impossible to tell how many children in South Africa are born stateless, by virtue of the very fact that many of them are undocumented or unaware of the provision which would give them citizenship. A study done by the University of Cape Town and the Scalabrini Centre has found that approximately of 109 children in child and youth care centres in the Western Cape, only 17 are at high risk of statelessness, while 89 may be at medium risk of statelessness. Although limited to those in the care system, this number gives an indication as to the number of children who would potentially qualify for citizenship in terms of this provision. South Africa has 9 provinces and the number would presumably be higher in Gauteng and in border areas, but it is hardly an unmanageable amount for the Department to justify its floodgate argument. In any event, this section is not a matter subject to management of immigration. It contains the right of citizens which is not dependent on the opinions of appropriate numbers of foreigners in the country. Stateless children can also be born to citizens in a number of ways, including where children are foundlings or are abandoned at a young age. Ultimately, the implementation of this provision will not only benefit Daniella, but will bring an end to the fights for recognition of the most vulnerable children in our society.
Watch a short film on Daniella’s story
Lawyers for Human Rights is a South African NGO which assists stateless children in South Africa. To support the cause sign the petition to the Minister of Home Affairs to end childhood statelessness in South Africa.
This blog was first published on the European Network on Statelessness website. To receive email updates from ENS with news on nationality and statelessness sign up here.