Birth certificates dispute over children of foreigners

Four human rights organisations have expressed concern over proposals by the Department of Home Affairs to discontinue issuing birth certificates to children born of foreign parents. The department last month published its proposed new regulations to the Births and Deaths Registration Act, notes SowetanLIVE. The closing date for comments was 16 November). Where previously all children were issued with birth certificates‚ irrespective of their parents’ nationality – as is required by the Constitution and international law on children’s rights – the new regulations propose that foreign children be issued with a ‘confirmation of birth’. The Centre for Child Law‚ Lawyers for Human Rights‚ the Scalabrini Centre of Cape Town and UCT's Refugee Law Clinic urged the department not to go ahead with the proposal. They described the potential change as problematic for a number of reasons‚ including that every child had the right to a birth certificate and that the proposals violated the child’s right to a name and a nationality in terms of the Constitution. The organisations said – in terms of international law – it was the responsibility of the country of birth to issue a birth certificate‚ regardless of whether citizenship was also granted.

The draft regulation requires children to present their ‘confirmation of birth’ to their embassy in order to obtain a birth certificate from their country of nationality, says the SowetanLIVE report. The organisations said this was particularly harmful to the children of refugees and asylum seekers because the parents could not approach their embassies – which would jeopardise their protection in SA. They said the proposed regulations were also harmful to orphaned and abandoned children who could not prove their nationalities because their parents were absent. ‘Without a birth certificate‚ children face immense barriers to basic services and human rights such as education‚ health and social services‚’ the organisations said. ‘The birth certificate also allows stateless children to apply for the safeguards which give them citizenship where they have no other citizenship.’

Home Affairs spokesperson Thabo Mokgola said it would be unfair for the department to comment as it was still considering public comment on the issue. A Business Day report says the department has previously stated that the basic principle of SA citizenship is that a child follows the citizenship or nationality of his or her parents. If one parent is a SA citizen, the child will be a citizen by birth. A foreign child adopted by SA citizens becomes a citizen by descent, while a naturalised citizen is one who has complied with the requirements for naturalisation as set out in section 5 of the South African Citizenship Act. ‘It is a difficult thing to issue a birth certificate where grounds for citizenship are not established, whether in terms of birth, descent or naturalisation,’ according to the department.