Source: Centre for Child Law, Lawyers for Human Rights, the Scalabrini Centre of Cape Town, the UCT Refugee Law Clinic
Joint Press Release
The Department of Home Affairs has published its proposed new regulations to the Births and Deaths Registration Act and is calling for the discontinuation of the issuing of birth certificates to foreign children.
Where previously all children were issued with birth certificates, as is required by the Constitution and international law on children’s rights, the new regulations propose that foreign children be issued with a mere “confirmation of birth” which is “not a birth certificate”, according to the new form.
This proposal is problematic for various reasons:
- Every child has the right to a birth certificate;
- In terms of international law, it is the responsibility of the country of birth to issue a birth certificate, regardless of whether citizenship is also granted or not;
- It violates the child’s right to a name and a nationality in terms of section 28 of the Constitution and various international law instruments;
- It amounts to unfair discrimination on a prohibited ground (ethnic origin and birth) listed in the equality clause (Sec 9) of the Constitution.
The draft regulation requires children to present their “confirmation of birth” to their embassy in order to obtain a birth certificate from their country of nationality. This is particularly harmful to:
- Refugee and asylum seeker children, because they cannot approach their embassies, which would jeopardise their protection in South Africa;
- Orphaned and abandoned children who cannot prove their nationalities because their parents are absent;
- Stateless children who do not have a country of nationality.
This proposed amendment comes in the wake of criticism from the UN Committee on the Rights of the Child, the African Committee of Experts on the Rights and Welfare of the Child and the UN Human Rights council on South Africa’s violations of international law on the child’s right to birth registration and a legal identity.
The UNCRC, in particular, has recommended that South Africa “review and amend all legislation and regulations relevant to birth registration and nationality to ensure their full conformity with the Convention, including through the removal of requirements that may have punitive or discriminatory impacts on certain groups of children.” Instead of implementing this recommendation, the Department is lowering the standard by removing birth registration for foreign children entirely.
Without a birth certificate children face immense barriers to basic services and human rights such as education, health and social services. The birth certificate also allows stateless children to apply for the safeguards which give them citizenship where they have no other citizenship.
The Constitution requires us to consider the best interests of the child to be paramount in all matters concerning the child (Section 28). Our courts have consistently found that it is in the best interest of the child to have a birth certificate and access to a nationality.
We urge the Department of Home Affairs not to pursue this amendment.
Read at Lawyers for Human Rights website: http://www.lhr.org.za/news/2018/home-affairs-discontinue-birth-certificates-foreign-children