The Department of Home Affairs has been ordered to grant citizenship to a minor child belonging to a Rwandan refugee family.
According to the Pretoria High Court, the department has been ordered to comply with this order within three months from date of service of this order by the Sheriff of the Court upon them.
Child has been stateless for 10 years
This comes after the family successfully fought in court to have their child recognised as a South African citizen after the minor had been stateless for 10 years.
On Wednesday, judge Anthony Millar shared that the parents of the child are legally recognised refugees from Rwanda. They married in Johannesburg in April 2011.
The family has lived in the country for many years. And during their married life, two children were born.
“Their eldest daughter, in consequence of the law as it stood at the time of her birth, and because she was born within South Africa, was automatically granted South African citizenship,” said Millar.
Parents are Rwandan refugees
However, their youngest daughter, who was born after a change in the law, found herself in a different position. The minor did not automatically qualify for citizenship in South Africa in consequence of the change in the law.
“From January 1, 2013, the Act was amended to allow only for citizenship in circumstances where one of the parents, at the time of the child’s birth, was a South African citizen.
“Since both parents are refugees and not citizens of the Republic, the youngest child finds herself in a situation where she is without South African citizenship conferred on her automatically. And to obtain citizenship upon application, would have to wait until she was a older to do so,” Millar added.
Home Affairs had suggested Rwandan birth register
Home affairs refused to recognise the minor as a citizen of South Africa. It argued that there are alternative remedies available to the parents. One of them is approaching the Rwandan authorities to have the minor’s birth registered. This is so that she may acquire Rwandan citizenship, and thereby remedy her statelessness.
“This presupposes that notwithstanding that the parents are refugees, the minor is as a matter of right or law. She is a citizen of the country of the parents’ origin – Rwanda.”
However, Millar said the minor does not qualify to be a citizen of Rwanda. This is simply by virtue of the fact of her birth to Rwandan parents outside of the territory of Rwanda.
“If they seek any recourse or make any application to assist their minor child, they imperil their own status within the Republic. Thus render themselves potentially liable to deportation. The choice is an impossible one because their eldest child is a South African citizen. She… has an unqualified right to reside in the Republic and can never be deported.”
Child cannot be stateless, says court
He further said 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.
“The decision of the Home Affairs Department not to register the minor as a citizen of the Republic of South Africa, is declared unlawful and is hereby reviewed and set aside.
“The minor is declared to be a South African citizen by birth. This in terms of section 2(2) of the South African Citizenship Act 88 of 1995 as amended. The Department of Home Affairs is hereby directed to … register the child as a citizen of the Republic of South Africa. It must issue her with a citizen identity number; and re-issue a birth certificate to reflect the aforesaid.”
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