2022 Statelessness & Citizenship Review 4(2) (‘Refugees Act’), and the Immigration Act No 13 of 2002 (‘Immigration Act’). It has even recently reared its ugly head in the proposed regulations to the South African Citizenship Act (‘Citizenship Act’) in which heavily restrictive antiforeigner measures have been introduced which limit the scope of the new Citizenship Act.43 The BDRA includes discriminatory provisions that make it more difficult and sometimes impossible for foreign parents to register the birth of their children.44 The Refugees Act has been the subject of court cases challenging the way in which it excludes the dependant but non-biological children of refugees and does not cater for unaccompanied refugee children.45 The Immigration Act has become increasingly restrictive in terms of obtaining legal status that could lead to citizenship. The most recent policy on this front is the Department of Home Affairs’ White Paper on International Migration for South Africa.46 It sets out the principle for future migration-related decisions and makes it clear that assimilation into the country through permanent residence and citizenship will be reserved for those who can financially contribute to the economy, thus excluding most children.47 Apart from the legislative barriers inherent in these laws, the administration of birth registration, refugee status and immigration status has likewise been under fire in the courts for an extreme lack of administrative justice or due process.48 This has led to massive backlogs in applications for status and birth certificates, causing an increase in irregular migration or citizenship status. Consequently, South Africa’s problem with institutionalised xenophobia and unlawful administration practices has left much to be desired in meeting its constitutional goals. The Constitutional Court and lower courts, having regard to the spirit and purport of the Constitution, have developed jurisprudence through precedent-setting judgments on citizenship rights and the legislation which affects an individual’s pathway to citizenship. These cases set the tone for the development of the law going forward, but also reveal the weaknesses in South Africa’s nationality administration.49 43 44 45 46 47 48 49 See the publication on the draft regulations to the Citizenship Act (n 24) for comment at Republic of South Africa, Staatskoerant, No 43551, 24 July 2020, 3 <https://static.pmg.org.za/200724SACitizenshipreg.pdf>, archived at <https://perma.cc/87BS-85DK>. Centre for Child Law v Director General: Department of Home Affairs [2021] ZACC 31. See, eg, Mubake v The Minister of Home Affairs [2015] ZAGPPHC 1037. Department of Home Affairs, ‘White Paper on International Migration for South Africa’ in Republic of South Africa, Staatskoerant, No 41009, 28 July 2017, 66 <https://www.gov.za/sites/default/files/gcis_document/201707/41009gon750.pdf>, archived at <https://perma.cc/HG6S-AU2Y>. ibid. Ruyobeza v Minister of Home Affairs [2003] 2 B All SA 697 (C); Nzama v Minister of Home Affairs (High Court of South Africa, Davis J, 4 April 2018) (‘Nzama’). For an in-depth study of the history of citizenship in South Africa see Jonathan Klaaren, ‘Viewed from the Past, The Future of South African Citizenship’ (2010) 69(3) African Studies 385; Jonathan Klaaren, ‘Constitutional Citizenship in South Africa’ (2010) 8(1) International Journal of Constitutional Law 94. 262