14. The only option for USMC outside mainstream immigration or asylum visas is to apply for permanent residence by exemption in terms of section 31(2)(b) of the Immigration Act. However, there is a fee to submit this application,22 and no set criteria thus receiving this exemption is not guaranteed as it is also subject to ministerial discretion.23 A special dispensation or visa pathway for USMC specifically would not only be in line with the best interests of the child, but also begin to provide pathways to nationality and citizenship, while reducing the risk of statelessness for this category of vulnerable children in South Africa. The Citizenship Act 15. The Citizenship Act makes provision for children to be granted citizenship in specific instances but are limited for USMC. Children’s access to nationality depends on birth occurring in the country and being registered in South Africa. There is no standard application procedure for sections 2(2) or 4(3) (see Annex I – National Law), resulting in individuals lodging applications via affidavit with lengthy adjudication times and no durable documentation in the interim.24 Subsequent to litigation, draft regulations have been published to assist in setting out how the Citizenship Act is implemented, but civil society has raised significant concerns over the substance of the draft regulations.25 Children’s Court Magistrate 16. If USMC are found to be in need of care and protection in terms of the Children's Act, 26 a CC may make an order for the documentation of the child by the Department of Home Affairs (DHA).27 In practice, few organisations supporting USMC and CC Magistrates are aware of this avenue and relevant orders from the CC are frequently not implemented by the DHA. 28 While the CC order gives the child some protection, it is not enabling documentation and many of these children are at increased risk of statelessness upon reaching the age of majority or when they exit the CYCC. II. Access to Birth Registration 17. Birth registration is fundamental to the legal recognition of children and, consequently, to their ability to secure a name and nationality. The framework as set out by the Births and Deaths Registration Act (BDRA) remains restrictive and places specific groups of children at 22 As of 2022, the fee is set at ZAR 1,550.00. The exemption application is complex, lengthy, and uncertain. Child applicants remain without immigration status for years, and due to complexities and costs involved in this process, not all vulnerable children are able to access the exemption. 24 As of early 2022, some applicants in the Minister of Home Affairs v Miriam Ali and Others case (see below p.12) have been granted citizenship and are now South African citizens. This is an encouraging development but also highlights the protracted nature of the application process. 25 See below in the Implementation of Court Judgments section for jurisprudence emanating from Sections 2(2) and 4(3) of the Citizenship Act. The publication of draft regulations is the result of this litigation. In regards to concerns with the substance of the proposed draft regulations, see: https://www.scalabrini.org.za/resources/submissions/our-submissions-on-citizenship-act-draft-regulations/ 26 Section 150 of the Children’s Act 38 of 2005. The proposed amendment bill, Children’s Amendment Bill [B18-2020] which proposes that unaccompanied children is a category presumed to be in need of care and protection. 27 Orders to document children are usually made in terms of Section 46 of the Children’s Act 38 of 2005 28 Also see section III below. 23 5