Family caught up in home affairs nightmare

11 December 2017 - 06:47 By Farren Collins
Image: Gallo Images/Thinkstock

When Florette and Nsongoni Mulowayi renounced their Democratic Republic of Congo citizenship, it was with the promise of a new life in a country they "want to serve".

Their eldest son had already been granted citizenship, having been born in South Africa in 2011, and they thought awarding the same status to them and their baby would be a formality.

But despite meeting all the requirements to be naturalised, the former refugees were left out in the cold when the Department of Home Affairs told them they would have to be permanent residents for 10 years - double the period stipulated in the Citizenship Act - before being considered for naturalisation,

As a result the parents are stateless but South African permanent residents. One child is a South African citizen. Another is stateless and without any status in South Africa.

The couple, who received permanent residency permits in 2011, are now seeking clarity from the High Court in Cape Town over what they believe is an incorrect application of the law by home affairs.

Their lawyer, Stefanie de Saude-Darbandi, said the Citizenship Act required only five years of "continuous" residency before a permanent resident can apply for naturalisation.

Home affairs was incorrectly applying a regulation of the act which stipulated that the period of ordinary residence referred to in the act is "10 years immediately preceding the date of application for naturalisation".

De Saude-Darbandi's assessment was confirmed by home affairs director-general Mkuseli Apleni, who said: "There is no number of years [prescribed for being a refugee]. Once you are granted permanent refugee status you can apply for permanent residency. [Then] you must meet the five years as a permanent residence holder. Once you finish the five years you can apply for naturalisation."

This contradicted the reasons for rejection his department gave the Mulowayis, and De Saude-Arbandi said: "Home affairs don't stick with the law and [if] they do it's when it suits them, even if the law is wrong.

"Incompetence, inconsistency and constant policy flip-flops by [home affairs] are causing chaos among foreigners seeking residence and citizenship in South Africa."

Florette and Nsongoni - a biochemist and medical doctor respectively - fled to South Africa as asylum seekers in the early 2000s amid civil war and political instability. They struggle to get work, and Nsongoni is forced to take short-term contracts in neighbouring countries to provide for their family.

"The way we are treated is as if we are beggars," said Florette. "We consider South Africa as our home and we want to use our skills to serve here."

Lotte Manicom, advocacy officer at the Scalabrini Centre in Cape Town, said restrictive immigration and birth registration laws were creating a pool of people at risk of statelessness: "Groups of undocumented people are not conducive to a functioning state. Statelessness is therefore not only a problem for the individuals involved, but an issue the South African state has an interest in resolving."

The Mulowayis' case is due to be heard in March.

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