2022 Statelessness & Citizenship Review 4(2) nationality to every child born in their territory.113 No discrimination based on the status of the child’s parents is allowed. This duty is not confined to children born in the territory. While this duty is clearly on the state where the child is born and the state of the parents’ nationality, where children are present in a country and their place of birth and/or parents nationality is unknown, the duty must fall on the state of residence. This is the case with children who have migrated to South Africa independently or with family from whom they have subsequently been separated. Often, young children who migrate are not able to provide proof of the information relevant to the determination and recognition of their citizenship, such as documents regarding their country of birth and the identity and citizenship of their parents. Where the information provided by the children is scant or unverifiable, the state of residence has a duty to create a pathway to nationality. South African law does not currently make provision for the acquisition of legal status for children born outside of South Africa who are stateless. The Immigration Act provides the Minister of Home Affairs with the discretion to grant permanent residence to any foreigner if there are special circumstances.114 This section can be employed to resolve the status of such children but is not specifically designed for this purpose and its processes are complicated and costly. There is an urgent need for the Department to address this legislative gap and to provide a special dispensation of permanent residence to such children. This will enable them to decide whether they would like to apply for South African citizenship or pursue citizenship in the country of their birth upon reaching the age of majority. This solution provides legal status to unaccompanied or separated migrant children while preserving their options for citizenship elsewhere, if available, and presenting them with a pathway to South African citizenship if they are stateless or after a period of five years. The Department of Social Development, in particular, has raised this as an urgent issue which needs to be addressed by the Department of Home Affairs.115 Litigation against the Department has previously been averted by a settlement in which 14 unaccompanied or separated migrant children were granted permanent residence under these circumstances.116 The Department will need to act soon to avoid potential litigation in the future and to ensure children living in its territory have access to their rights. 113 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). See also UN Human Rights Committee, General Comment No 17: Article 24 (Rights of the Child), UN Doc INT/CCPR/GEC/6623/E (7 April 1989). 114 Immigration Act No 13 of 2002, s 31(2)(b) (Republic of South Africa). 115 South African Government, Department of Social Development, ‘Social Development on Colloquium on Accompanied and Undocumented Migrant Children’ (Media Statement, 18 October 2017) <https://www.gov.za/speeches/social-development-colloquium-unaccompaniedand-undocumented-migrant-children-18-oct-2017>, archived at <https://perma.cc/ZR5MYSJY>. See generally South African Government, Department of Social Development and Department of Home Affairs, ‘Colloquium on Separate and Unaccompanied Migrant Children: 16, 17 and 18 October 2017’ (Background Paper, October 2017). See also Farren Collins, ‘South Africa’s Invisible Children’, TimesLIVE (online, 19 October 2017) <https://www.timeslive.co.za/news/south-africa/2017-10-19-south-africas-invisible-children/>, archived at <https://perma.cc/V87B-AXWL>; ‘SA Takes on Plight of Undocumented Migrant Children’, SA News (online, 18 October 2017) <https://www.sanews.gov.za/south-africa/sa-takesplight-undocumented-migrant-children>, archived at <https://perma.cc/3KBJ-S8VT>. 116 This was in response to a letter of demand sent in October 2020 on behalf of the Scalabrini Centre of Cape Town by Lawyers for Human Rights to the Minister of Home Affairs. 274