Jessica george
If you spend an afternoon near the Beit Bridge border, 18km from Musina, you may encounter a group of boys playing soccer in the street. Typical teenagers, they laugh and joke, exhausting every last ray of sunlight before the day’s end.
Night is harsher; some sleep in a container down the road sponsored by Save the Children. Others sleep on the streets, lying on top of one another for warmth.
They may intend to go home, but for now they are on a risky adventure to reunite with family, work, study or seek asylum.
Under the current system, unaccompanied minors cannot apply for asylum or other documentation without a children’s court proceeding and social worker assistance.
But many avoid the child protection system in favour of independence, and remain undocumented.
Those who do seek government assistance are often sent from pillar to post as officials shirk their responsibilities.
The reality is that these young migrants may wake up one day and find themselves stateless.
Nationality exists when a person has ties to a country either through birth, descent or long-time residence.
Migrants who leave their countries of birth as children risk losing the ties with the only country where they qualify for citizenship. The longer they remain abroad, the greater the risk that they will become stateless.
The UN High Commissioner for Refugees (UNHCR) defines a stateless person as “one who is not considered as a national by any state under the operation of its law”.
A broader definition, appropriate to the African context, includes those who are either unable to prove their nationality or are prevented from accessing their citizenship rights.
Without nationality, one cannot vote, work legally, attend school, marry, leave or enter any country, stand for political office, obtain an ID, own property, access social assistance, and more.
You cannot be “deported” to another state, but you cannot enjoy protection from the state where you were born. For these reasons, nationality has been said to be “the right to have rights”.
Many young people travel to South Africa alone or are separated from their families during migration. Parents die. Documents are lost.
Aggravating matters, such as low rates of birth registration in Africa, mean that many migrants have never had birth certificates. Those who do have enabling documents often leave them behind or lose them in the precarious trek to South Africa. By adulthood, they may no longer be able to prove their nationality.
While denial of nationality is often linked to being a refugee, not all stateless persons meet the legal test for refugee status, and so remain unprotected.
Given the 90 percent rejection rate in South Africa’s asylum system, and five to 10-year waits for a final decision, rejected asylum seekers may have to return to a country that does recognise them as citizens.
Two statelessness treaties exist, but ratification remains low. While many human rights instruments protect the right to a nationality, few states have created a domestic system of protection for stateless individuals.
Children born in South Africa to migrants are also at risk of statelessness. Recognised refugees are often refused birth certificates for their children. Undocumented parents are flatly denied and threatened with arrest at Department of Home Affairs offices.
Even children with a South African parent face obstacles.
Recently, in the Moyo case, the Pretoria High Court ordered Home Affairs to register the birth and South African citizenship of the child of an asylum-seeker mother and a South African father.
While legally entitled to citizenship, Home Affairs refused to register the child due to his mother’s status and the citizen father’s death. Without legal assistance, similar cases go unresolved.
Despite misconceptions, birth certificates do not entitle children of migrants to South African citizenship.
But they may enable these children to access their parents’ nationality through proving citizenship by descent.
As Home Affairs restricts access to birth certificates, it creates another problem. Without this document, children born to migrants risk becoming a lost generation – with access to neither South African citizenship nor their foreign parent’s nationality.
It may be impossible to deport them. And they will not benefit from section 2(2) of the Citizenship Act, which provides citizenship to children born here.
With its strong human rights framework and high rates of migration, South Africa is well positioned to take the lead in Africa with regard to statelessness.
First steps for prevention include fixing the broken system that deals with unaccompanied foreign minors to ensure that they receive documentation, and achieving universal birth registration for all children, regardless of their parents’ immigration status.
Next, South Africa should establish a system to protect stateless persons that best suits our context and that can relieve the overburdened asylum system.
Co-operation with migrants’ countries of origin is key to finding durable solutions and ensuring that citizens of other African nations are recognised as such.
l George is a legal counsellor for Lawyers for Human Rights’ Statelessness Project