In addition, the children most at risk of statelessness – those
whose parents are stateless or are undocumented migrants – face
an additional barrier in accessing section 2(2) protection. Section
2(2) requires that a birth is registered in order for a child to access
citizenship. However, Regulation 8 of the Births and Deaths Act
now requires that the parents have a valid permit when registering
the child and that a foreign father must produce a paternity test at
his own cost. While this regulation may be intended to aid the child
by clarifying the identity of the parents, the result is that a parent
who is without an identity document and/or without a valid
immigration permit and/or cannot afford a paternity test will not be
able to apply for a birth certificate for his or her child.
Undocumented parents or those with expired immigration permits
are aware that arrest is a possibility and thus delay birth
registration.
In addition to the challenges created by the Births and Deaths
Act and its regulations, xenophobia and lack of awareness on the
part of Home Affairs officials has complicated the enforcement of
universal birth registration in South Africa. Since March 2011,
Lawyers for Human Rights has consulted with over a hundred
clients who have been unable to access a birth certificate for a child
born in the Republic. Asylum seekers, refugees, undocumented
migrants and marginalised South Africans alike have been turned
away for lack of a South African identity document (an unfounded
requirement); expired or lost permits; and inability to produce any
government-issued identity document.
Finding a solution for clients: immigration status and citizenship
their birth outside their parents’ country of nationality – are not
accessing this right. While applicants for birth registration are
assessed as to whether one parent is a citizen or permanent
resident, at no point during or after birth registration – the critical
point at which ID numbers are assigned – does Home Affairs assess
whether or not such children in fact have 'the citizenship or
nationality of any other country' or have the right to such
citizenship or nationality.
Stateless children born in South Africa to foreign parents
Whether a child qualifies for South African citizenship due to lack of
another nationality or citizenship – or lack of the right to another
nationality or citizenship – depends entirely on his or her parents’
countries of origin and the relevant citizenship law and practice of
those countries.
For that reason, provided herein is an analysis of the nationality
law and practice of a sampling of countries whose nationality laws
are likely to create statelessness if their citizens give birth in South
Africa.
Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide
87
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