Sons and daughters of no country
The children of migrants, refugees and asylum seekers could be further jeopardised by changes to regulations governing birth certificates.
Author:
3 January 2019
If amendments to South Africa’s Births and Deaths Registration Act are approved, the children of migrants and other vulnerable groups might find it even more difficult to access basic services. Under the proposed amendments, these children will receive a notice of birth, which will have to be taken to their embassy to obtain a birth certificate.
NGOs, including the Scalabrini Centre of Cape Town, Lawyers for Human Rights and the Centre for Child Law, have expressed concerns over the proposed amendments, saying that they amount to unfair discrimination on prohibited grounds in terms of the equality clause of the Constitution. They also violate children’s rights to a name and nationality in terms of section 28 of the Constitution, as well as various instruments of international law.
The amendments also do not consider that it is dangerous or impossible for those who have fled their countries to approach their embassies for birth certificates; or that orphaned and abandoned children who cannot prove their nationalities because their parents are absent, and stateless children who do not have a country of nationality, might be prejudiced.
Pleas for compassion
The organisations have urged the department of home affairs not to pursue the amendments. “I cannot speak for home affairs, but considering the fact that there is no legitimate legal reason for discontinuing birth certificates for foreign children, we can only assume that the reason is political and an attempt to exclude foreigners from basic rights and society,’’ said Liesl Muller from Lawyers for Human Rights.
Anjuli Maistry from the Centre of Child Law expressed concern that abandoned, stateless and refugee children might never obtain a birth certificate and be deprived of basic services. “The amendments also prevent children who would otherwise qualify for citizenship by naturalisation from being able to naturalise. One of the requirements for naturalisation is a South African birth certificate. The amendments could be seen as an attempt to hinder or totally prevent access to naturalisation, which is unlawful,” Maistry said.
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“A child’s access to their own birth certificate is barred because of their parents’ status in South Africa,” said Lotte Manicom from the Scalabrini Centre of Cape Town. “Holding a valid permit in South Africa – especially a valid asylum seeker permit – is not a simple feat, especially with the ongoing closure of some refugee reception offices. It is in South Africa’s own interest to properly register those who are born within its borders.”
Rebecca Walker, a researcher at the African Centre for Migration and Society at Wits University, confirmed the proposed amendment violated both national and international law. She added that it was unclear “how this can be justified in any way other than to serve political goals by appealing to anti-immigration sentiments”.
“The suggestion that by excluding non-nationals there will suddenly be more and better resources for nationals is not only misleading, but also deflects from the failures of the government itself. Furthermore, to tell non-national parents that their child no longer has the right to a name and nationality in South Africa is in effect telling them we do not care, while pushing them into higher levels of precarity,” she said. “Challenges already faced in accessing basic services, including healthcare and education, will now become even greater.”
When asked to comment on the proposed amendments, home affairs media manager David Hlabane said that the final regulations would be published “only when all relevant persons have been engaged”. He went on: “It would be presumptuous, at this stage, to begin to say the department has discontinued issuing birth certificates.”
