In another defeat for the department of home affairs, Pretoria’s high court has ordered that a stateless child born to refugee parents from Rwanda be given SA citizenship.
The judgment sets a precedent for how courts can handle complex cases of children born to refugees with permanent resident permits.
The parents of the minor, who cannot be named, are legally recognised Rwandan refugees who have permanent resident permits.
Their firstborn has SA citizenship because she was born in 2012 when the Citizenship Act allowed a person born in the country to be a citizen by birth — if one of the parents had been lawfully admitted for permanent residence.
The law changed in January 2013 and no longer has this provision. Their second child born in 2015 was not granted citizenship by home affairs because of the change in law.
The law allows the child of a parent who has permanent residence to apply for citizenship once they have reached the age of majority (18) and lived in the country from birth.
Judge Anthony Millar in his judgment said the decision taken by the department of home affairs in not granting the child citizenship was an administrative decision reviewable under the Promotion of Administrative Justice Act.
The department, in refusing to recognise the minor as a citizen, argued the parents should approach the Rwandan authorities to have the child’s birth registered so that she may acquire Rwandan citizenship, which would remedy her statelessness.
The judge said the parents, in applying for citizenship for the minor, would imperil their refugee status and render themselves potentially liable to deportation.
“This will mean that the [parents] would have to avail themselves of the protection of the country from which they have fled and are refugees.
“Section 5(1)(a) of the Refugees Act provides that a person ceases to qualify for refugee status if he or she voluntarily reavails himself or herself in the prescribed circumstances of the protection of the country of his or her nationality,” Millar said in his judgment.
“The choice is an impossible one because their eldest minor child is an SA citizen who has an unqualified right to reside in the Republic and can never be deported.”
He ruled the child be granted citizenship.
“The circumstances in which the minor child finds herself, fall squarely within the provisions of section 2(2) of the Citizenship Act. It is constitutionally directed that a child is to have a nationality from birth, and it follows axiomatically that it is in the best interests of the child that this is so.
“In the circumstances, the minor child is to be declared a citizen of the Republic of South Africa.”
Section 2 (2) reads: “Any person born in the republic and who is not an SA citizen by the provisions of subsection (I) shall be an SA citizen by birth, if (a) he or she does not have the citizenship or nationality of any other country.”
Immigration lawyer Ashraf Essop said the judgment would set a precedent in cases related to statelessness.
“The judgment is binding and other people affected by similar situations can rely on this judgment to claim that right. People who are in the same situation can approach home affairs for citizenship for a child born in similar circumstances,” he said.
He said he had clients who were in the same situation.
“We were waiting for some kind of direction from the court, and I think this is a very good judgment in terms of defining what needs to happen. The constitution does not tolerate statelessness.
“It is an absolutely essential judgment and interprets the law for what it is. It makes it clear that you cannot be deprived of citizenship.”
The court ruling has been delivered as parliament debates the Immigration Amendment Bill.
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