South Africa: Information on the immigration status of a minor who was born in South Africa to foreign parents who are officially recognized as refugees (2007-April 2015) [ZAF105155.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Refugee Status of a Dependent

Section 3(c) of the Refugees Act, 1998indicates that a dependent [1] of a person who qualifies for refugee status also qualifies for refugee status (South Africa 1998, Sec. 3(c)). Other sources corroborate that a dependent of a recognized refugee qualifies to have refugee status (Senior Researcher 18 Apr. 2015; SCCT 24 Apr. 2015, 2; RMC 23 Apr. 2015). In correspondence with the Research Directorate, a senior researcher at the University of Witwatersrand's African Centre for Migration & Society (ACMS), "an independent, interdisciplinary and internationally engaged Africa-based centre of excellence" on migration issues (ACMS n.d.), stated that if the child was not included at the time of the [principal applicant's] initial application for refugee status, he or she will have to be added to the parent's file, which the source notes "should be a relatively straightforward process, but in practice refugees have struggled to do this because of administrative problems at the refugee reception centres" (18 Apr. 2015). In correspondence with the Research Directorate, an advocacy officer at the Scalabrini Centre of Cape Town (SCCT), a non-profit organization in the Western Cape that provides legal advice and assistance to refugees and asylum seekers, explained that

[t]he Regulations to the Refugees Actrequires of dependents applying for refugee status pursuant to section 3(c) of the Refugees Act to appear for the hearing before a Refugee Status Determination Officer, together with the principal asylum seeker. In practice, the entire family unit (main applicant and all dependents) must be present during each appearance at Home Affairs, even if the [refugee] permit is simply renewed pending the finalization of the application. If a dependent is not present, the particular permit will not be renewed. Allowing the permit to expire without just cause, is considered an administrative offence and subject to penalties. If the main applicant is not present, none of the dependents will be able to renew their documentation, or further the asylum application and the absence of the main applicant should lead to an investigation of the continuation of the relation of dependency. (SCCT 24 Apr. 2015)

For information on the treatment of refugees in South Africa, including at reception centres, see Response to Information Request ZAF105045.

2. Impact on the Dependent When Parents Lose Refugee Status

According to the advocacy officer at the SCCT, in relation to dependent children,

[t]he [Refugees Act, 1998] foresees dependency to cease when the child attains majority; in the event of death of the main applicant; or if the refugee parent ceases to qualify for refugee status under Section 5. Under any of these circumstances, the dependent should be allowed to apply to remain in South Africa. In terms of Section 33(4) of the Act, the child's refugee claim, independent to that of the parent, will be assessed to determine whether he or she qualifies for refugee status under Section 3(a) or (b) of the Act. If it is determined that the child does not qualify for refugee status independently, the process for withdrawal of the permit will be initiated as per Section 36 of the Refugees Act. (SCCT 24 Apr. 2015, 5)

The same source further explained that "once refugee status ceases as a result of a voluntary act by the refugee parent, the [refugee] permit will be withdrawn. If the permit of the principal applicant is withdrawn, the permit of any dependent issued in terms of section 3(c) of the Act will also be withdrawn" (ibid., 4). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.1 Impact on Dependent When Parents Depart South Africa

According to the Senior Researcher, a refugee may travel if he or she obtains travel documents, otherwise the child and parents would lose refugee status (Senior Researcher 18 Apr. 2015). For further information on the consequences of leaving the country without refugee travel documents, including the possibility of withdrawal of status, see Response to Information Request ZAF105046.

In correspondence with the Research Directorate, the Director of the Refugee Ministries Centre (RMC), which was founded in 2004 by Christian Churches of South Africa with a vision to “form a sustainable environment for the integration of refugees and asylum seekers in South Africa” (RMC n.d.), said that if a child leaves South Africa, they could return to the country as long as their refugee status is still valid (RMC 24 Apr. 2015). For general information on losing and re-obtaining refugee status in South Africa, including when a recognized refugee leaves the country, as well as a copy of the Refugees Act, 1998, see Response to Information Request ZAF105046.

The SCCT advocacy officer indicated that it "often happens" that refugee parents depart South Africa and leave behind their dependent children, which "creates considerable problems for the children that remain" (24 Apr. 2015). According to the RMC Director, a child born in South Africa of refugee parents, whose parents are no longer in the country "cannot have refugee status" on his/her own, as children are considered dependents of the principal applicant (24 Apr. 2015). The same source explained that the child would remain a refugee "as long as their status is valid," but would not be able to renew it on their own without the principal applicant: "every time a refugee has to renew their status, they undergo an interview (adjudication) process, as it is not a given that they will always get a renewal/extension of their status" (ibid.). The RMC Director further indicated that in the case of a child under 18, the child would "become illegal" after the expiry of their refugee status (based on their parent's status) if the parents have left the country (ibid.). In the case of an individual who is over 18, they would have to apply for asylum and undergo the adjudication process as a new applicant (ibid.).

According to the Senior Researcher, to the best of her knowledge, the situation where a refugee child is abandoned in South Africa by refugee parents who leave the country has not yet been tested in court and the law is not clear on the issue (Senior Researcher 25 Apr. 2015). The same source explained that

[b]ecause the child's refugee status is based on the parents' refugee status, it is not clear whether that status remains if the parents leave, particularly when the child went to renew refugee status. If the child stayed behind, he/she would be considered an unaccompanied minor, and under the law, would have to be assigned a social worker and have a children's court hearing. Unaccompanied minors struggle to get status in SA. I think if the child got a social worker (also problematic), they would then accompany the child to Home Affairs. How the reception officer would then respond is anybody's guess - whether he would renew/issue the child with a refugee permit or refuse to do so without the parents, in which case it would probably end up in court. (ibid.)

3. Citizenship Pathways for a Child Born in South Africa to Refugee Parents

According to the advocacy officer, "birth on South African soil does not automatically confer nationality" (SCCT 24 Apr. 2015, 1). According to the same source, "it is possible ... that a child born in South Africa to refugee parents [may] qualify for citizenship on the grounds of statelessness under Section 2(2) of the Citizenship Act, or through naturalisation, as per Section 4(3)" (ibid., 4). Section 2(2) of the Citizenship Actindicates the following regarding citizenship by birth:

(2) Any person born in the Republic and who is not a South African citizen by virtue of the provisions of subsection (I) shall be a South African citizen by birth, if-

  1. he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality; and
  2. his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act. No. 51 of 1992). (South Africa 2010)

Section 4(3) states the following regarding naturalization:

(3) A child born in the Republic of parents who are not South African citizens or who have not been admitted into the Republic for permanent day residence, qualifies to apply for South African citizenship upon becoming a major if-

  1. he or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and
  2. his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992). (ibid.)

For further information on the requirements and procedures to obtain South African citizenship by naturalization or by birth, see Response to Information Request ZAF104569. For information on permanent residence for refugees, see Response to Information Request ZAF105046.

The Senior Researcher indicated that there is no established procedure for proving statelessness in order to access citizenship by birth in accordance with the Citizenship Act(Senior Researcher 18 Apr. 2015). The SCCT similarly noted that there is no regulation accompanying the statelessness provision to provide guidance on its application, but the [2010] amendments "are considered a measure to prevent and reduce statelessness" (SCCT 24 Apr. 2015, 3-4). According to a 2014 publication by Lawyers for Human Rights (LHR), an international human rights NGO "with a primary focus in Africa" (LHR n.d.), titled Promoting Citizenship and Preventing Statelessness in South Africa: A Practitioner's Guide,

[i]n spite of South Africa's commendable legislation intended to prevent statelessness from birth, the right to South African citizenship for those born stateless on the territory is rarely, if ever, realised in practice. This is, in large part, due to the administrative procedures for registering children born to foreign nationals in South Africa. (LHR 2014, 86)

The RMC Director similarly noted that, while, "on paper," the Citizenship Actprovides that a child born in South Africa to refugee parents can apply to be naturalized at age 18 if their birth has been registered, in her experience, she has not seen any child be granted citizenship "based on this Act" (RMC 23 Apr. 2015).

4. Birth Registration for Child Born in South Africa to Refugee Parents

The LHR publication states that

[b]irth registration is the key to nationality in South Africa. For all those who qualify for citizenship or permanent residence, it is the critical moment when a person is entered into the National Population Register. In order to obtain an ID in South Africa, one must first apply for a birth certificate and be issued with an ID number. Only at this point can a South African citizen apply for an ID and passport and conduct other civil registry activities, such as registering one's children's births, registering marriages and registering deaths. (LHR 2014, 32)

Similarly, according to a 2014 article by Times Live, a South African media source, being entered in the NPR system is the basic requirement that allows an individual to access government benefits and apply for an ID document and passport (28 Sept. 2014).

According to the website of South Africa's Department of Home Affairs (DHA), "all children born in South Africa must be registered within 30 days of their birth" (South Africa n.d.a). Section 6 of the Refugees Amendment Act, 2011provides that this requirement applies equally to children born to an asylum seeker or refugee (ibid. 2011, Sec. 6). According to the DHA website, for late registration of a birth after 30 days, form BI-24 and written reasons why the birth was not registered must be provided, as well as other documents (ibid. n.d.a). For further information on birth registration procedures and legislation, see Response to Information Request ZAF104569.

According to the LHR publication, Section 2(2) of the Citizenship Actrequires that a birth be registered in order for a child to access citizenship under that provision (LHR 2014, 87). The source further notes that the children of parents with asylum seeker and refugee permits are considered a group at "high risk of statelessness": birth registration is "critical" to their right to citizenship and this group can face challenges accessing birth registration (ibid., 133). Other sources corroborate that refugees and asylum seekers have difficulty registering the births of their babies (SCCT 24 Apr. 2015, 2; Senior Researcher 25 Apr. 2015). Sources note that one of the challenges refugee parents face in registering their child's birth is that they may not meet the documentary requirements for birth registration (LHR 2014, 87; Senior Researcher 18 Apr. 2015). [0]For example, the LHR publication notes that the parents may not be unable to produce a government-issued identity document or a valid immigration permit (LHR 2014, 87), while the Senior Researcher noted that parents may not be able to provide a passport (Senior Researcher 18 Apr. 2015). The Senior Researcher gave the opinion that for a child born in South Africa to refugee parents, the birth registration process is a "significant obstacle," explaining that

[b]irth registration has to take place within 30 days. After 30 days, there are additional requirements. Parents must provide a notice of birth or an affidavit from a South African citizen who witnessed the birth if it did not take place at a health institution. Parents must apply to register the child at a Home Affairs office, with all the necessary documentation. Also, under my reading of the regulations passed last year, a non-citizen parent must provide a passport, which a refugee may not have. (ibid.)

Similarly, according to LHR, since March 2011, the organization has consulted with "over 100 clients" who have been unable to access a birth certificate for a child born in South Africa, including asylum seekers, refugees, undocumented migrants and marginalized South Africans, who have reportedly been turned away due to "lack of a South African identity document (an unfounded requirement); expired or lost permits; and inability to produce any government-issued identity document" (LHR 2014, 87). The advocacy officer noted that difficulties with birth registration occur "if the [refugee] permit is due to expire on a date in the near future, irrespective of the fact that it is still valid on the date that birth registration is requested" (SCCT 24 Apr. 2015, 2).

According to the LHR publication, other factors contributing to the challenges of birth registration in the country include "xenophobia and lack of awareness on the part of Home Affairs officials" (LHR 2014, 87). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Sources report that by 31 December 2015, South Africa will cease a government programme for late registration of births (South Africa n.d.b; Times Live 28 Sept. 2014) which had been running for six years and is due to close in December 2015 (ibid.). The Times Live article notes that late registration will still be "possible" after the discontinuation of the program (ibid.). According to the Home Affairs Minister, quoted in the 2014 Times Live article, due to the government's concerns over fraudulent claims to citizenship, "late registration, while still possible, would become much more difficult from 2016 onwards, particularly for adults" (ibid.). He stated that "screening committees" will be set up and "it will be a strenuous [process] for [applicants] to make it. Nobody will be precluded, but the screening will be more rigorous post 2015" (ibid.). Further and corroborating information about these procedures could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note

[1] A dependent includes the spouse, any unmarried dependant child under the age of 18. or "destitute, aged or infirm" member of the asylum seeker's family (South Africa 1998, Sec. 1(vii) and (ix)).

References

African Centre for Migration & Society (ACMS). N.d. "ACMS." <http://www.migration.org.za/page/acms> [Accessed 31 May 2015]

Lawyers for Human Rights (LHR). 2014. Jessica P. George and Rosalind Elphick. Promoting Citizenship and Preventing Statelessness in South Africa: A Practitioner's Guide. Pretoria: Pretoria University Law Press.

_____. N.d. "About Lawyers for Human Rights." <http://www.lhr.org.za/about-lawyers-human-rights> [Accessed 27 May 2015]

Refugee Ministries Centre (RMC). 24 April 2015. Correspondence from the Director to the Research Directorate.

_____. 23 April 2015. Correspondence from the Director to the Research Directorate.

_____. N.d. “Vision.” [Accessed 5 June 2015]

Scalabrini Centre of Cape Town (SCCT). 24 April 2015. Correspondence from an advocacy officer to the Research Directorate.

Senior Researcher, African Centre for Migration & Society (ACMS), University of Witwatersrand, Johannesburg. 25 April 2015. Correspondence with the Research Directorate.

_____. 18 April 2015. Correspondence with the Research Directorate.

South Africa. 2011. Refugees Amendment Act, 2011. <http://www.gov.za/sites/www.gov.za/files/a12_2011_0.pdf> [Accessed 12 Jan. 2015]

_____. 2010. South African Citizenship Amendment Act, 2010. <http://www.saflii.org/za/legis/num_act/sacaa351.pdf> [Accessed 18 Apr. 2015]

_____. 1998 (amended 2008 and 2011). Refugees Act, 1998. <http://www.gov.za/sites/www.gov.za/files/a130-98_0.pdf> [Accessed 12 Jan. 2015]

_____. N.d.a. Department of Home Affairs. "Birth Certificates." <http://www.dha.gov.za/index.php/birth-certificates1> [Accessed 4 May 2015]

_____. N.d.b. Government of South Africa. "Register Birth." <http://www.gov.za/services/birth/register-birth> [Accessed 4 May 2015]

Times Live. 28 September 2014. "Home Affairs Minister Fingers Crooked Priests for False Registrations." <http://www.timeslive.co.za/politics/2014/09/28/home-affairs-minister-fingers-crooked-priests-for-false-registrations> [Accessed 4 May 2015]

Additional Sources Consulted

Oral sources:Attempts to contact the following were unsuccessful within the time constraints of this Response: Black Sash; Legal Resources Centre; Refugee Children's Project; Refugee Rights Unit, Kramer Law School, University of Cape Town; University of Kwazulu-Natal Law Clinic.

Internet sites, including: AllAfrica; Black Sash; ecoi.net; Factiva; Human Rights Watch; Immigration South Africa; International Crisis Group; IRIN; Legal Resources Centre; Refugee Children's Project; South Africa – Embassy in Ottawa; UN – Refworld, UNICEF; US – Department of State.