Stateless: Protecting the right to nationality

By Jessica P George

Recent and upcoming changes to the law on citizenship and birth registration in South Africa show that there is still a long way to go to protect the right to nationality. Some recent amendments in fact create new barriers to nationality and exacerbate statelessness — when a person is not recognised as a national by any country.

The changing landscape
The key to citizenship in any country is the moment a person’s birth is registered. The birth certificate, a simple piece of paper, captures the place of birth and the nationality of a child’s parents, allowing the child to access any rights to nationality through the parents and/or through birth in a particular country. This crucial document makes and breaks quality of life and can determine whether someone can access citizenship and all the rights that flow from it.

Recently Home Affairs Minister Naledi Pandor announced that the department would begin issuing unabridged birth certificates for children born after March 4 2013 — abridged certificates would no longer be issued. Pandor, in January this year, cited concerns over lengthy waiting periods, unnecessary paperwork and security of the population register as reasons for this shift. Parents should get unabridged certificates, which include more parental details than the abridged version, in a day, rather than in six to eight weeks.

These improvements are positive but the department would make bigger strides in securing the population register and protecting national security if it rather focused on how to prevent statelessness. The department’s legitimate efforts are being thwarted by a number of legal provisions that the department, together with Parliament, drafted.

Amendments to the Births and Deaths Registration Act 2010 (“BDRA”) which will come into force soon, contain some concerning draft regulations. One regulation orders that parents registering children 30 days after birth will need to pay a fee — or more accurately — a fine. Another requires foreign parents to produce a passport and proof of immigration status to register a birth.

The South African Citizenship Amendment Act of 2010 and its regulations came into force on January 1 2013. The Act includes amendments meant to place citizens born abroad on an equal footing to those born in South Africa by making both “citizens by birth”. The Act amends the section providing citizenship by birth for children born in South Africa to permanent residents. Under the previous Act, citizenship was granted at birth. Under the amended Act, these children must now wait until they are 18 years old to get South African citizenship, provided they lived in the country for their entire lives.

The Act allows new grounds for deprivation of citizenship in spite of the Constitution’s prohibition on deprivation of citizenship. Any naturalised citizen who, under the flag of another nation, participates in a war the country does not support, “shall” lose his or her South African citizenship — no more clarity is provided on this.

Another vital point in the Act is a section that allows children born in South Africa to parents who are not citizens or to parents who “have not been admitted into the Republic for permanent residence” to apply for naturalisation at the age of majority, provided they have lived in the country for their whole lives and their birth was registered.

Long way to go to protect the right to nationality
Everyone will welcome unabridged birth certificates issued on the “same day” but we await real reform that will make universal birth registration a reality and not just an aspiration.

Imposing fines on parents registering children “late” is a serious barrier since many parents do not register births on time due to financial constraints and the long distances they need to travel to home affairs offices. Health complications and bread and butter issues take priority, especially in the early days of birth. To add a fine means more births will go unregistered — in violation of children’s basic rights. International human rights organisations, including the United Nations Children’s Fund and Plan International, advocate strongly for free registration and against the imposition of fees or fines.

While placing citizens born abroad equal to those born in the country is good in theory, in practice it provides no benefit to such citizens if the registration requirements for citizens born abroad are not relaxed. Birth registration rates in Africa remain abysmally low and the BDRA’s strict requirement of a foreign birth certificate leaves many would-be South Africans unable to access citizenship.

Requiring children born in South Africa to permanent resident parents to wait until age 18 to claim citizenship — rather than giving citizenship at birth, as was previously done — takes another bite out of the right to nationality. It is unconstitutional given that South Africa’s Constitution protects every child’s right to a name and nationality “from birth” and not “from age of majority”. It frustrates social cohesion and nation-building by excluding children from the citizenry while growing up, and for what legitimate state goal?

Lawyers for Human Rights has long advocated for undocumented parents to be allowed to register their children’s births without discrimination but the home affairs department has made it even clearer that it intends to prevent such births from being registered. Requiring non-citizen parents to produce a passport and immigration permit to register a birth, as contemplated in draft regulations to the BDRA, is not only a step backward but it is unconstitutional discrimination. Birth certificates are required to enrol in crèche, school, to access medical care and more. Birth registration is not the time for immigration enforcement, given the implications for the child’s rights and the state’s need to document births. In a country with such high rates of irregular migration, the impact of this provision would be unimaginable.

Not only does this provision create major barriers to universal birth registration but it will also create statelessness.

Children born to foreign nationals in South Africa risk becoming stateless because nationality laws of the parents’ countries of origin do not always allow parents to pass nationality to children born abroad. Parents may pass away or abandon children before registering children with the country of origin. Discrimination and lack of uniform implementation of nationality laws in other countries can result in non-recognition of citizens born abroad.

The only saving grace for stateless children born in South Africa is Section 2(2) of Citizenship Act. It grants citizenship by birth to anyone who is born in the country and “who does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality” — provided the birth is registered. Children born to parents who are stateless, undocumented or irregular migrants are least likely to be able to register their children’s birth due to lack of identification and fear of arrest. The children of refugees will also suffer under the proposed regulation requiring a passport, because their parents are unable or unwilling to approach their country of origin.

Lawyers for Human Rights made submissions to government in 2012 on the draft regulations to the Births and Deaths Registration Act’s and Citizenship Act, flagging these and other concerns. We recommended that the department draft a regulation to Section 2(2) to explain how to determine whether a child is stateless and if he or she would qualify for South African citizenship. The final regulations are silent on this point, leaving it an idealistic but inaccessible protection.

We also requested clarity on the section providing citizenship to children born to parents who are not citizens and not permanent residents. Who would this apply to? It has the potential to be a crucial stop-gap for statelessness but only if it is widely interpreted. The final regulations are also mute on this point.

We truly hope the minister will turn her attention to some of the issues raised above. Failing to do so would only result in more “invisible people” living in South Africa, who are unable to integrate and contribute to South African society but who have nowhere else to go.

Jessica P George is a legal counsellor with the Statelessness Project which falls under LHR’s Refugee and Migrant Rights Programme.