country (i.e., stateless) is a South African citizen by birth. This is an important legal safeguard against statelessness in South Africa’s citizenship laws. Requirements: 1. 2. 3. born in South Africa; no citizenship in any other country i.e., stateless; or birth registration and birth certificate. Process: 1. 2. conduct birth registration process at DHA if necessary; conduct informal statelessness determination process by following these steps: • • • 3. 4. have an interview on documentation history of child; assess the relevant citizenship and immigration law; and confirm citizenship or immigration status of a child with competent authorities. submit an application for citizenship to DHA in the form of an affidavit or a statement of facts relating to the child’s statelessness and accompanied by the relevant documentary evidence, e.g., birth certificate, parents’ documentation, confirmation of nonrecognition of citizenship from the embassy, consulate, or foreign mission of any country that the child may have links to; or alternatively, compile all relevant documents and refer the case to a lawyer. Case law: The interpretation of Sec 2(2) SACA was dealt with by our courts in the case summarised below. Minister of Home Affairs v DGLR (2016) Unreported judgment case no: 1051/2015 (SCA) – confirms that children who would otherwise be stateless and are born in South Africa are entitled to citizenship and DHA ordered to draft regulations for the implementation of Section 2(2 SACA). Further confirms that it is not in the best interests of a child to be rendered stateless, nor to remain stateless. www.lhr.org.za This case concerns a child who was born in South Africa to Cuban parents who held immigration permits in South Africa. Her birth was registered and she was issued a birth certificate – but no ID. Citizens are issued electronic birth certificates with an ID number that is entered into the National Population Register, non-citizen are issued a handwritten birth certificate with no ID number. Her parents believed she would obtain Cuban citizenship because they were Cuban, but when they approached the Cuban embassy, they were informed that this would not be possible because the parents had lived outside Cuba for an extended period, they were now deemed “permanent emigrants” and lost the right to pass on their citizenship to their child. Cuban embassy issued note verbale declaring the child was not a Cuban citizen. Her parents attempted to apply for South African citizenship under Section 2(2) SACA because their child was stateless. DHA refused to grant the child South African citizenship on the basis that Cuba ought to have granted her citizenship or that she would be eligible to apply for permanent residency based on her parents’ status. The court ruled that it was not in the best interests of the child to remain stateless. The court further ruled that permanent residence was a poor substitute for citizenship as permanent residence status is derivative status (i.e. based on the parents’ status) and could be lost or withdrawn easily, resulting in statelessness once again. The court therefore declared that the child was entitled to South African citizenship by birth under Section 2(2) SACA. While Section 2(2) SACA is an important legal safeguard against statelessness in South Africa, it is difficult to implement it as South Africa is yet to establish a Statelessness Determination Mechanism or to publish regulations that set out the administrative process to be followed for such applications. In recognition of this gap, the court further ordered DHA to draft regulations to this provision by March 2018. (Note: at the time of publishing this guide, the DHA had still published the final regulations). www.savethechildren.org.za | 21