Summary: South African courts confirm right to nationality of stateless child

6th September 2016: The Supreme Court of Appeal (confirming an order of the North Gauteng High Court) has confirmed the right to South African citizenship of a child born in South Africa to Cuban citizens, setting an important precedent for other stateless children. The family were assisted in their legal case by SRT grantee Lawyers for Human Rights (LHR).

Daniella was born in Cape Town in 2008. Her parents had come to South Africa on a treaty programme allowing engineers to work there on a special permit. After Daniella was born, they discovered that the Cuban government considers those who work outside Cuba for more than 11 months to be “permanent emigrants” who cannot pass on their nationality to any child born outside Cuba. However, because Daniella’s parents are not South African, she was not a citizen of South Africa either.

Section 2(2) of the Citizenship Act states that all children born in South Africa who would otherwise be stateless should be considered South African citizens by birth. Daniella’s parents first applied for her on this basis, but the Department of Home Affairs refused to recognise her citizenship, claiming that she was not stateless. In a later meeting between LHR and the Department, they confessed that they had resolved not to implement Section 2(2) because “too many people would apply for citizenship”.

Lawyers for Human Rights then applied to the High Court for recognition of Daniella’s pre-existing right to citizenship in terms of Section 2(2). On 6th September 2016 the Supreme Court of Appeal confirmed the High Court’s decision, and ordered the Department for Home Affairs to declare Daniella a South African citizen by birth, issue her with an identity number and birth certificate, and make regulations to facilitate the implementation of section 2(2) of the Citizenship Act within the next 18 months to allow other stateless children to apply for citizenship.

Liesl Muller, head of the Statelessness Project at Lawyers for Human Rights, said, “Ultimately, the implementation of this provision will not only benefit Daniella, but will bring an end to the fights for recognition of the most vulnerable children in our society.”

More information about the case can be found here.

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