potentially, at some future date, appeal the initial decision internally
or in court.82 Of course, as an attorney you will want to try to assist
the client to go beyond the window-level official to access
citizenship. But for advocacy's sake, a decision by a window-level
official is binding.83
However, if the client was turned away because he did not have
one of the necessary documents to prove his citizenship, he may
not be stateless unless the document in question is one that is
impossible for him to obtain. For example, a client was born abroad
to South African citizens. In order to register at Home Affairs in
South Africa as a citizen, he must submit a birth certificate from the
country of birth. He does not have this document and is unable to
obtain it (his parents passed away, he has no other documents or
witnesses in that country to help him get a birth certificate and he
has attempted to get a birth certificate but has been turned away).
In such a situation, the client is stateless if he has no other
nationality, even though he had South African parents. On the
other hand, if the same client tries to register as South African and
was turned away because he did not have his foreign birth
certificate, which is sitting at home and could easily be brought
into Home Affairs, he should not be regarded as stateless.
Information concerning state practice can be obtained from a
variety of sources, governmental and non-governmental. The
complexity of nationality law and practice in a particular state may
justify recourse to expert evidence in some cases.84
For such country-related information to be treated as accurate, it
needs to be obtained from reliable and unbiased sources –
preferably more than one source. Recommended sources include
state bodies directly involved in nationality mechanisms, or nonstate actors which have built up expertise in monitoring or
reviewing such matters. It is important that country-related
information is continuously updated so that changes in nationality
law and practice are taken into account. That being said, the
country-related information relied on should be contemporaneous
with the events that are under consideration in the case in
question. In addition, where the practice of officials involved in
applying the nationality laws of a state appears to differ by region,
this must be taken into account with respect to country-related
evidence.85
82
83
84
85
48
UNHCR Definition Guidelines (n 7 above) para 21.
If the window-level official took a decision in another country, and the local
foreign mission in South Africa does not recognise the client as a citizen, it is
safe to rely on those two factors as conclusive proof of statelessness, with
which you can motivate that the client receive an exemption in South Africa.
UNHCR Definition Guidelines (n 7 above) para 33.
UNHCR Definition Guidelines (n 7 above) para 34.
Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide