increased risk of statelessness.29 The barriers that prevent South Africa from achieving universal birth registration include the following: The requirement that the parents of the child have valid documentation: a. Section 9(1) of the BDRA stipulates that the birth registration of “any child born alive” must be initiated by the parents (or any other prescribed persons).30 However, the Regulations require parents to have valid documentation and legal status before they are able to register their child.31 This has the effect of making the legal safeguards for children against statelessness in the Citizenship Act contingent on the legal status of their parents, and perpetuates generational statelessness. This restriction is contrary to the South African Constitution,32 at odds with the child’s right to a nationality and undermines the protection against statelessness found in section 2(2) of the Citizenship Act. The High Court has found these requirements unconstitutional and ordered parents to submit valid documentation “where it is available”.33 These provisions affect citizens and non-citizens alike. South African citizens without an ID document or those who are blocked from accessing ID documents are unable to register the birth of their child. Asylum seekers and refugees in South Africa also face numerous obstacles in accessing the birth registration system as access is contingent upon the validity of their own documentation.34 Restrictive time limit for birth registration: b. The BDRA mandates that registration must be done within 30 days of occurrence of birth. Birth registration after the initial 30 days is permitted under limited circumstances, and failure to comply with additional requirements can result in the birth not being registered. 35 The late registration of birth process is often protracted 29 This was acknowledged by the 2017 report of the High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change which recommended that Parliament should introduce legislative changes to the BDRA to ‘ensure that children of foreign nationals are not discriminated against’ and amend the Citizenship Act to ensure foreign nationals are not discriminated against in regard to acquiring nationality. Available at: https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf see specifically pp. 353-355. 30 The High Court has interpreted the phrase “any child born alive” to mean “just about any child provided that child was born alive” see: Naki and others v Director General: Department of Home Affairs [2018] 3 All SA 802 (ECG) (case no:4996/16) para 26. 31 Considered valid documentation: identity documents, valid passports and valid temporary or permanent residence permits, valid asylum or refugee documentation etc. See Sub-regulation (3) of Regulation 3, 4, 5 and 8 of the BDRA, 2014. 32 Section 28(1)(a). 33 Naki and others v Director General: Department of Home Affairs [2018] 3 All SA 802 (ECG) (case no:4996/16) paras 29 – 37 and para 39 34 These barriers are well documented. See for example Roni Amit, ‘Queue here for corruption: measuring irregularities in South Africa's asylum system.’ Lawyers for Human Rights and the African Centre for Migration & Society Report (2015); Amnesty International, ‘South Africa: Living in limbo: Rights of asylum seekers denied’, October 2019, https://www.amnesty.org/en/documents/afr53/0983/2019/en/ 35 The late registration of birth process was created to accommodate people who had not been registered under the previous Acts. It is subject to compliance with subregulations 4(3)(a)-(i) and 5(3)(a)-(i) which set out additional requirements such as an affidavit by a South African citizen who witnessed the birth; Fingerprints of the parents or adoptive parents; Certified copies of the parents’ identity documents and in the case of foreign nationals, certified copies of valid passports, visas, and asylum/ refugee permits are required; Where applicable: i. a marriage certificate of the parents; ii. a death certificate of any deceased parent; iii. a certified copy of the identity document of the next of kin; and iv. proof of payment. Although the late registration fee is currently suspended by DHA, it remains in Regulations 4(3)(l), 5(3)(m), 8(3)(l). If a child is born outside a healthcare facility, Regulation 3(3) and Regulation 11 of the BDRA require the birth of such child to be confirmed by an affidavit deposed by a South Africa citizen present at the time of the birth. This provision is arbitrary and excludes children born under these conditions, failing to take account of varying birth practices in South Africa, particularly those common in communities of foreign migrants, many of whom may opt for a midwife-led birth. This is particularly common when such communities have experienced discrimination when trying to access the healthcare system. 6