2022 Statelessness & Citizenship Review 4(2) therefore she could not be stateless. If South Africa only granted South African citizenship to children in cases where it considered the refusal of citizenship by the other country to be fair, many children would be without remedy and statelessness would not be resolved.68 The Court equally dismissed this argument and commenced a factual enquiry into whether the child had no other nationality and no right to another nationality. Once this was established, the Court was able to apply s 2(2). This interpretation confirmed the need for a purely factual enquiry instead of an inquiry into who ought to grant citizenship, which will be useful for future applications. The Department’s third interpretive contention was that DGLR was not stateless because she had not exhausted all remedies for a grant of citizenship in her parents’ country of origin, Cuba, nor did the Cuban embassy have the requisite authority to make determinations of citizenship.69 The Department also argued that DGLR may at some point in the future be able to apply for Cuban citizenship.70 The Court rejected these arguments in line with international standards. The exhaustion of all remedies in Cuba would require DGLR to travel to her country of origin, which would be impossible without a passport and would result in excessive costs and delays (inherent in litigation), defeating the ends of justice.71 According to the United Nations High Commissioner for Refugees (‘UNHCR’), an embassy in the country where a child is residing is indeed the relevant authority for making such a decision72 and notes that there is no requirement that domestic remedies must be exhausted for a finding of statelessness, as this would place an unreasonable burden on an applicant.73 The customary international law definition of statelessness must be applied to the status of a person at the time when the case is being determined. Whether a person may be able to acquire the nationality of a state in the future is therefore irrelevant to the determination of statelessness.74 These contentions would place insurmountable barriers in the way of stateless children born in South Africa and were correctly rejected by the Court. When DGLR’s mother first approached the Department to apply for citizenship under s 2(2), she was informed that there were no regulations accompanying the Citizenship Act which provide for an application form that could be filled in; 68 UNHCR, Experts Meeting: The Concept of Stateless Persons under International Law (Summary Conclusion, 2010) 4 (‘Summary Conclusion’): where a deprivation of nationality may be contrary to rules of international law, this illegality is not relevant in determining whether the person is a national for the purposes of Article 1(1) — rather, it is the position under domestic law that is relevant. 69 DGLR, ‘Respondents’ Head of Argument’ in DGLR Appeal (n 60) 8–9 [22]–[23]. Minister of Home Affairs and Others, ‘Appellants’ Heads of Argument’ in DGLR Appeal (n 60) 10 [23]. ‘Annexure KM4’ in DGLR Appeal (n 60). This annexure includes information from the Cuban Consulate in South Africa about the process required for naturalisation of a child born to Cuban emigrants abroad dated 21 August 2009. UNHCR, Summary Conclusion (n 68) 17: If an individual is refused such registration or is prevented from applying for it, he or she is not considered as a national for the purposes of Article 1(1). 70 71 72 73 74 UNHCR, Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons (Handbook, 2014) 17 [39]–[40] (‘UNHCR Handbook’); Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960) art 1(1) (‘1954 Statelessness Convention’). UNHCR, Summary Conclusion (n 68) 20. 266