Home affairs minister Aaron Motsoaledi says a clearer definition of statelessness must underpin revisions to the Citizenship Act, which together with the Refugee Act and the Immigration Act are under a fundamental review by his department.
He said in an interview on Wednesday that there was a common misconception that a child born in SA had the right to apply for citizenship when they turned 18 years on the grounds that without that, they would be stateless. However, they are actually citizens of the country of their parents.
The claim of statelessness has also been put forward by some Zimbabweans who were granted special exemption permits and are opposing their expiry at the end of 2022. They are demanding permanent resident status, which can lead to citizenship. SA birth certificates have also been demanded by foreign nationals living in the country for their children.
In terms of current law, individuals have to apply for citizenship when they reach 18 years old.
Motsoaledi said that the UN High Commission for Refugees (UNHCR) assistant high commissioner for protection Gillian Triggs had agreed in a dialogue held Wednesday that SA was not obliged to grant citizenship to every child born in the country to non-SA parents unless there were an indication that that would lead to statelessness in line with the 1961 Convention on the Reduction of Statelessness, which forbids it.
The minister said statelessness meant that there was absolutely no link between a person and the country of origin of their forebears. That was an exceptional circumstance.
In terms of the agreement with the UNHCR, the SA government will issue a record of birth for children born in the country which can be presented to the country where they are deserving of citizenship.
The minister said the review of the three acts was necessary as circumstances had changed since they were promulgated between 20 and 27 years ago. The process of review was far advanced and a white paper would probably be ready for public consultation in a few months’ time. The acts need to be harmonised and brought into alignment with international refugee law.
An amalgamation of the three acts into one act in line with international practice is also a possibility, Motsoaledi said, as there were significant overlaps between them and there was a continuum in some of their processes. However, they were applied in silos by different branches of the department. He said that that was causing “an administrative nightmare”.
The UNHCR will assist with the legislative review.
Another controversial issue that will be addressed in the review will be the right to engage in political activity. In terms of a regulation introduced in 2021 under the Refugee Act — which has not been implemented because Motsoaledi disagrees with it — refugees wanting to engage in political activity have to apply to the minister for permission.
The minister has said that that regulation was “very crude” but that he also believed political opponents coming from countries where there had been internationally recognised free and fair elections, should not have the right to use SA as a base for their political activities targeted at their home country. Such people should also not qualify as refugees.
Also to be addressed in the legislative review is the qualifications required of refugee-status-determination officers to ensure that they are sufficiently qualified to undertake their task. Those doing this work currently are quite junior, the minister said.
The UNHCR has been helping SA clear the backlog of asylum seekers, which currently stands at about 153,000, most of them caught up in the appeals process. The UNHCR granted R147m for that in 2021. Motsoaledi said that that money would be used to employ 36 lawyers over four years to work for the Refugee Appeals Authority of SA, to deal with the appeals. They have already been trained and have begun work.
The UNHCR has agreed to expand the project to include the determination of initial refugee status and will look into the funding and resources needed for that. It will also look into providing technical support so that SA can digitise its asylum-seeker and refugee files.
The government and the UNHCR have also agreed to establish a task team to draft a new co-operation agreement to replace the one signed in 1993, which was primarily focused on the return of exiles from abroad after the unbanning of the ANC.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.