Stateless children can now apply for citizenship after home affairs withdraws appeal

06 September 2016 - 19:47 By Ernest Mabuza


The Department of Home Affairs on Tuesday withdrew its appeal in the Supreme Court of Appeal concerning the case of an eight-year-old stateless child who was born in South Africa to Cuban parents. The department of home affairs had wanted to apply for leave to appeal against a judgment of the high court in Pretoria‚ which declared that the child was a South African citizen. The child became stateless because Cuban law does not allow children to obtain Cuban citizenship if they were born outside of Cuba to parents considered “permanent emigrants”‚ or Cubans who had lived outside of Cuba for more than 11 months.South African law also gives citizenship based on the South African citizenship of the parents.However‚ Section 2(2) of the Citizenship Act gave these children a chance to be declared South African citizens.However‚ the home affairs department refused to implement the subsection by way of making regulations‚ forcing the child to approach the high court.On the morning of the hearing at the Supreme Court of Appeal in Bloemfontein‚ the department withdrew the case and agreed to an order that the child is declared to be a South African citizen by birth.The department also agreed to comply with the high court order by issuing the child with a South African citizen ID number and birth certificate.The Minister of Home Affairs also agreed to make regulations to section 2(2) of the Citizenship Act within 18 months in order to allow other stateless children to apply for citizenship.Since section 2(2) was inserted into the Citizenship Act‚ it was impossible to implement‚ because there was no application form.Once the regulations are passed‚ other stateless children will also be able to apply for citizenship and will no longer be stateless.The child’s mother‚ a civil engineer‚ was a candidate for a programme between South Africa and the Cuban government for the housing department and was based in Cape Town with her husband.The couple had been married for eight years when she arrived in South Africa and could not have a child.Her mother said it was a miracle baby as she was 40 when the child was born.“She was born in September 2008 here in Cape Town. When she was born‚ we immediately thought she was Cuban because we are from Cuba‚” her mother said.One of the arguments by the department appeal to the SCA was that too many children were expected to apply for citizenship.Lawyers for Human Rights said there was no basis to believe that too many children would qualify for citizenship under this section.“It is a preventative measure for special cases and will protect the most vulnerable of children. It applies to children born in South Africa who do not have a claim to another country's citizenship‚” Lawyers for Human Rights said in a statement.

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