Such children may struggle to obtain travel documents and thus
their right to freedom of movement is at risk, along with the right
to family unity that can be implicated due to inability to travel to
meet relatives in the parents’ country of origin. This legal
amendment also prolongs the period of time during which children
are reliant on their parents for immigration and nationality status.
There is an 18 year period during which time parents can pass
away, documents can be lost and other factors can intervene to
frustrate a child’s ability to access nationality when he or she
becomes a major.
This legal amendment may also be unconstitutional. Section
28(a) of the Constitution of the Republic of South Africa provides
that ‘Every child has the right to a name and nationality from birth.’
The amendment does, however, give children the right to
choose their nationality when they become adults. This is beneficial
for children born to parents from countries that prohibit dual
nationality. Such children will not be foreclosed from choosing to
take their parents’ nationality due to having acquired South African
citizenship by operation of law. That being said, countries such as
Malawi and Zambia allow dual nationality until age of majority, at
which time a person must choose which nationality they will keep
before turning 22 years old. The risk is that people unaware of
these citizenship requirements will lose their chance to acquire their
parents’ nationality due to failure to comply with administrative
requirements, which often include renouncing other nationality
claims (even though they often do not have any other nationality
claims, making renunciation impossible).
To assist children of permanent residence who cannot access
their parents' nationality, contact the foreign missions of the
countries in question to confirm their citizenship status and see if
there is any way they can acquire citizenship.
If this fails, consider filing an application for citizenship for
stateless persons born in South Africa under section 2(2) of the
Citizenship Act.
Section 15 of Citizenship Act allows the Minister to issue
citizenship certificates in a case of doubt in the event that the client
has trouble proving his or her claim to citizenship via birth to a
permanent resident parent. See the following section for more
information on this provision.
Judicial review of a decision not to register a client as a citizen
can be brought under the Promotion of Administrative Justice Act,
rule 53 of Uniform Rules of Court and potentially section 25 of
Citizenship Act (allows High Court to review any decision of the
Minister regarding citizenship). An application to compel
registration of client is another litigation option.
82
Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide
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