15. The Immigration Act: In the absence of specific legislation protecting the rights of those who are stateless or at risk of being stateless, an exemption application under section 31(2)(b) of the Immigration Act,22 is relied upon to grant legal status to such people. It affords the Minister of Home Affairs the discretion under special circumstances to grant permanent residence to a foreign national in South Africa. This is the only pathway to nationality (through subsequent naturalisation) for these vulnerable persons. 16. The Immigration Act does not make provision for a legal immigration status for unaccompanied migrant children not born in South Africa. These children are at risk of statelessness. The right of every child to acquire and retain a nationality 17. LHR and ISI’s joint submission to the Committee on the Rights of the Child highlighted four significant concerns directly related to the child’s right to acquire and retain a nationality and seven additional concerns related to the law, policy and practice of birth registration which undermines every child’s right to a nationality. These concerns are briefly dealt with below: Discriminatory application of the pre-requisite of birth registration: 18. As explained above, provision of citizenship under the Citizenship Act to a) children born on the territory who would otherwise be stateless (Section 2(2)); b) children born on the territory and who have lived in South Africa until age of majority, and whose parents are permanent residents or other migrants (Section 2(3) and 4(3)); and c) children adopted by South African citizens (Section 3); are dependent on whether the birth of child was registered. 19. Certain children are excluded entirely from birth registration in South Africa23 and therefore excluded from citizenship. These are often the children of vulnerable and marginalised parents. Particularly undocumented persons who themselves are stateless or at risk of statelessness are unable to have their children’s births registered because of restrictions in the Births and Deaths Registrations Act. Other children excluded from birth registration include the children of single fathers when the mother is unavailable or undocumented; the children of migrants without valid immigration status and foundlings who appear foreign. LHR client Manny has been refused a birth certificate since being found when he was 2 years old, because he is believed to be foreign. Adopted children are only considered nationals if their births are registered. LHR client Annie, who was adopted by South Africans was refused a birth certificate because her foreign birth mother was unable to qualify as a citizen under the Act as a result of the lack of birth registration and was stateless. The lack of regulations to implement Section 2(2) of the Citizenship Act: 20. Section 2(2) of the South African Citizenship Act provides citizenship to children who are born stateless in South Africa. However, it is not possible for stateless children to apply for citizenship using this provision, because there is no regulation to provide a form to fill out at the local office. There are also no guiding principles on determining whether a child is stateless under the Act. As a result of this legal gap, Daniella, a LHR client who was born in Cape Town, South Africa was stateless for the first 8 years of her life. Her mother and father thought that she would automatically be Cuban because they are Cuban. However, they had been away from Cuba for a 22 23 Immigration Act 13 of 2002, and Immigration Regulations, 2014 http://www.lhr.org.za/sites/lhr.org.za/files/childhood_statelessness_in_south_africa.pdf