{"id":14370,"date":"2017-09-07T14:27:23","date_gmt":"2017-09-07T14:27:23","guid":{"rendered":"http:\/\/citizenshiprightsafrica.org\/?p=14370"},"modified":"2017-09-07T14:28:46","modified_gmt":"2017-09-07T14:28:46","slug":"court-rules-citizen%c2%adship-act-applies-retrospectively-to-children-born-in-south-africa-to-foreign-parents","status":"publish","type":"post","link":"https:\/\/citizenshiprightsafrica.org\/en\/court-rules-citizen%c2%adship-act-applies-retrospectively-to-children-born-in-south-africa-to-foreign-parents\/","title":{"rendered":"Court rules Citizen\u00adship Act applies retrospectively to children born in South Africa to foreign parents"},"content":{"rendered":"

In the West\u00adern Cape High Court today, 07<\/span> Sep\u00adtem\u00adber 2017<\/span>, a judg\u00adment was handed down which affirms that chil\u00addren who were born in South Africa to for\u00adeign par\u00adents are enti\u00adtled to apply for cit\u00adi\u00adzen\u00adship, through the South African Cit\u00adi\u00adzen\u00adship Act 88<\/span> of 1995<\/span>, even if they were born before the 2010<\/span> Amend\u00adment, which came into effect in 2013<\/span>.<\/p>\n

The appli\u00adcants, rep\u00adre\u00adsented by the Legal Resources Cen\u00adtre, were all born in South Africa to for\u00adeign par\u00adents before 2013<\/span> and have now reached major\u00adity (over 18<\/span>). They meet the require\u00adments for apply\u00ading for cit\u00adi\u00adzen\u00adship in terms of Sec\u00adtion 4<\/span>(3<\/span>) of the Cit\u00adi\u00adzen\u00adship Act, in that they were born in South Africa and have the lived here since their births, and they have birth cer\u00adtifi\u00adcates attest\u00ading to their birth in South Africa.<\/p>\n

The Depart\u00adment of Home Affairs refused to con\u00adsider their appli\u00adca\u00adtions, argu\u00ading that Sec\u00adtion 4<\/span>(3<\/span>) was intro\u00adduced through the Amend\u00adment Act of 2010<\/span>, which came into effect in 2013<\/span>, and there\u00adfore only applies to chil\u00addren born after 2013<\/span>. This would mean that the sec\u00adtion can only be imple\u00admented for those turn\u00ading 18<\/span> after 2031<\/span>. They fur\u00adther asserted that there is no prej\u00adu\u00addice to the appli\u00adcants because they can apply for refugee sta\u00adtus or per\u00adma\u00adnent res\u00adi\u00addency.<\/p>\n

The LRC<\/span> approached the High Court on behalf of the appli\u00adcants, argu\u00ading that the refusal to con\u00adsider the appli\u00adca\u00adtions for cit\u00adi\u00adzen\u00adship is prej\u00adu\u00addi\u00adcial to our clients in a real way, hav\u00ading not only prac\u00adti\u00adcal impli\u00adca\u00adtions, but also infring\u00ading on con\u00adsti\u00adtu\u00adtional enti\u00adtle\u00adments. But not allow\u00ading them cit\u00adi\u00adzen\u00adship, the Depart\u00adment is con\u00adsign\u00ading them, unlaw\u00adfully, to remain as non-citizens in the coun\u00adtry that they have lived in since birth and is the only coun\u00adtry they know.<\/p>\n

This non-citizen sta\u00adtus also ren\u00adders the appli\u00adcants vul\u00adner\u00ada\u00adble to hos\u00adtil\u00adi\u00adties directed at them.<\/p>\n

The judg\u00adment in the High Court agrees that there are con\u00adsti\u00adtu\u00adtional enti\u00adtle\u00adments at stake, includ\u00ading the right to dig\u00adnity. It fur\u00adther states that, \u201cthe appli\u00adcants have a statu\u00adtory right to apply for cit\u00adi\u00adzen\u00adship and the respon\u00addents can\u00adnot limit or inter\u00adfere with this right by con\u00adtend\u00ading that \u201cno prej\u00adu\u00addice flows\u201d.<\/p>\n

The Court also agreed with the argu\u00adment by the LRC<\/span> that the Depart\u00adment of Home Affairs is inter\u00adpret\u00ading the prin\u00adci\u00adple of ret\u00adro\u00adspec\u00adtiv\u00adity incor\u00adrectly and that, in this instance, the Amend\u00adment Act should be read ret\u00adro\u00adspec\u00adtively because the appli\u00adcants are not tak\u00ading away any vested rights or cre\u00adat\u00ading new oblig\u00ada\u00adtions. They sim\u00adple want their statu\u00adtory rights to be given effect to. Fur\u00adther\u00admore, the judg\u00adment states that the Department\u2019s inter\u00adpre\u00adta\u00adtion of the Amend\u00adment Act, \u201ctakes no account of the duty to intepret statutes in a man\u00adner that pro\u00admotes the spirit, pur\u00adport and object of the Bill of Rights\u2026\u201d<\/p>\n

While the Court did not direct the Depart\u00adment to pro\u00advide the appli\u00adcants with cit\u00adi\u00adzen\u00adship, the Court did direct the Depart\u00adment to accept the appli\u00adca\u00adtions for cit\u00adi\u00adzen\u00adship from the appli\u00adcants and make a deci\u00adsion on the appli\u00adca\u00adtions within ten days.<\/p>\n

The Court also directed that the Amend\u00adment Act must be inter\u00adpreted to include chil\u00addren born before 2013<\/span>.<\/p>\n

The LRC<\/span> are pleased with the judg\u00adment, which affirms the rights of our clients to be treated with dig\u00adnity and not to be ren\u00addered non-citizens through the wrong\u00adful inter\u00adpre\u00adta\u00adton of statutes.<\/p>\n

The instruct\u00ading attor\u00adney is William Ker\u00adfoot from the Cape Town office.<\/p>\n

Read original on LRC website: http:\/\/lrc.org.za\/lrcarchive\/press-releases\/3738-press-release-court-rules-citizen-act-applies-retrospectively-to-children-born-in-south-africa-to-foreign-parents<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"In the West\u00adern Cape High Court today, 07 Sep\u00adtem\u00adber 2017, a judg\u00adment was handed down which affirms that chil\u00addren who were born in South Africa to for\u00adeign par\u00adents are enti\u00adtled to apply for cit\u00adi\u00adzen\u00adship, through the South African Cit\u00adi\u00adzen\u00adship Act 88 of 1995, even if they were born before the 2010 Amend\u00adment, which came into […]","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-14370","post","type-post","status-publish","format-standard","hentry","category-uncategorized","region-south-africa","type-news-articles","item-year-631","item-theme-acquisition-by-children","item-theme-acquisition-of-nationality"],"acf":[],"_links":{"self":[{"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/posts\/14370","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/comments?post=14370"}],"version-history":[{"count":2,"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/posts\/14370\/revisions"}],"predecessor-version":[{"id":14376,"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/posts\/14370\/revisions\/14376"}],"wp:attachment":[{"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/media?parent=14370"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/categories?post=14370"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/citizenshiprightsafrica.org\/en\/wp-json\/wp\/v2\/tags?post=14370"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}