Promoting Citizenship and Preventing Statelessness in South Africa: A Practitioner's Guide

Lawyers For Human Rights

Description

‘Everyone has the right to a nationality’ Universal Declaration of Human Rights. Without the protection afforded by citizenship and nationality individuals face insecurity, discrimination and marginalisation without any means of accessing protection.Stateless persons are among the most vulnerable and are often denied the enjoyment of rights such as equality before the law, the right to work, education and healthcare. Being stateless means that individuals may not even be able to marry or register the births of their own children.Lawyers for Human Rights has drafted this Guide to assist legal practitioners and social workers dealing with cases of persons at risk of statelessness as well as de jure stateless persons. The Guidelines are meant to address a gap in the protection of stateless persons. In the absence of a Statelessness Status Determination Procedure these guidelines create a net of protective measures which may be relied on to protect and assist this group of persons to access documentation and citizenship.About the editors:Lawyers for Human Rights is an independent human rights organisation with a 35-year track record of human rights activism and public interest litigation in South Africa. LHR uses the law as a positive instrument for change and to deepen the democratisation of South African society. To this end, it provides free legal services to vulnerable, marginalised and indigent individuals and communities, both non-national and South African, who are victims of unlawful infringements of their constitutional rights.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2014
• Nombre de lectures: 1
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Promoting Citizenship and Preventing Statelessness in South Africa: A PRACTITIONER’S GUIDE

Authored by Jessica P. George and Rosalind Elphick with additional updates and editing by Kaajal Ramjathan-Keogh and Liesl Muller

2014

Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-30-9

© 2014

Table of contents

Foreword ................................................................................................v

Acronyms .............................................................................................. vi

1

Introduction ............................................................................ 1

2 Defining the concepts ..................................................... 6 2.1 Citizenship or nationality............................................................. 6 2.2 Stateless ...................................................................................... 6 2.3 At risk of statelessness ................................................................. 8 2.4 Birth registration ......................................................................... 8 2.5 Undocumented person ............................................................... 9 2.6 Irregular migrant......................................................................... 9 2.7Jus soli......................................................................................... 9 2.8Jus sanguini............................................................................... 10 2.9In situstateless persons ............................................................. 10 2.10 Nationality acquired by automatic modes versus non- automatic modes ...................................................................... 10 2.11 Discretionary versus non-discretionary applications for citizenship................................................................................. 11

3

4

5

3.1 3.2

4.1 4.2 4.3 4.4

4.5

5.1

5.2 5.3

6 6.1 6.2

Legal framework on nationality and statelessness in South Africa ...................................................................... 14 International law ....................................................................... 14 South African Legal Framework ................................................. 20

Assessing citizenship and identifying a stateless person in practice ................................................................ 41 Step One: Personal history interview ......................................... 42 Step Two: Analysis of the states to which the client has ties....... 43 Step Three: Make your initial assessment................................... 49 Step Four: Approaching competent authorities to confirm nationality status ....................................................................... 51 Step Five: Apply the UNHCR guidelines and confirm client's citizenship or stateless status ..................................................... 54

Finding a solution for clients: immigration status and citizenship ..................................................................... 56

People with an unrecognised claim to South African citizenship................................................................................. 58 Stateless persons with no claim to South African citizenship ...... 95 Last resort options: litigation and resettlement ........................ 106

Prevention of statelessness .............................................. 108 Assisting vulnerable children ................................................... 108 Birth registration of other foreign children .............................. 120

iii Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide

7

8

9

8.1

8.2 8.3

Checklist of strategies to assist clients ........................... 123

Assisting stateless persons in immigration detention ............................................................................. 134 Stateless persons' right to release from immigration detention ................................................................................ 137 Protection from arbitrary arrest through documentation ......... 140 Preventing deportation to a country where a person would not access citizenship ................................................... 141

Advocacy...................................................................... 144

10 Annexure ............................................................................. 147 10.1 Application to the Minister of Home Affairs for permanent residence exemption ............................................. 147

iv Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide

Foreword

‘Everyone has the right to a nationality’Universal Declaration of Human Rights.Without the protection afforded by citizenship and nationality individuals face insecurity, discrimination and marginalisation without any means of accessing protection.

Stateless persons are among the most vulnerable and are often denied the enjoyment of rights such as equality before the law, the right to work, education and healthcare. Being stateless means that individuals may not even be able to marry or register the births of their own children.

Lawyers for Human Rights has been working on issues of statelessness since 2010. We established a Statelessness Project in 2011 and have been assisting stateless persons since this time. We continue to be concerned by the discrimination and absence of accessible protective measures for stateless persons. This Guide provides practical guidance in the representation and provision of assistance to stateless persons. We hope that this Guide will assist legal practitioners and social workers to take on cases of stateless persons and to assist them to acquire documents and citizenship. Lawyers for Human Rights acknowledges the support of the United Nations High Commissioner for Refugees in our work in preventing and reducing statelessness. In particular we thank Sergio Calle Noreno for his inspiration and support of our Statelessness Project. We are further grateful for invaluable direction provided by 1 the UNHCR’sHandbook on Protection of Stateless Persons which was published in June 2014. We are indebted to Jessica George and Rosalind Elphick for drafting this Guide.

Kaajal RamjathanKeogh Head: Refugee and Migrants Rights Programme Lawyers for Human Rights Johannesburg, August 2014

1

http://www.refworld.org/docid/53b676aa4.html

Foreword

v Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide

Acronyms

BDRA DHA DSD ID SA UAM UNHCR UN UNICEF

Births and Deaths Registration Act 51 of 1992 Department of Home Affairs Department of Social Development Identity document Republic of South Africa Unaccompanied minor United Nations High Commissioner for Refugees United Nations United Nations Children's Fund

vi Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide

1

Introduction

For those of us who have passports or identity documents, the key that these documents hold to accessing our basic human rights is a fact that we take for granted. We open bank accounts, enter into contracts (including marriage), register for social security, go to hospital and register the births of our children, later enrolling them in school, all without a thought to our ‘ticket’ to these services: our documentation. Yet for thosewithoutthe ability to obtain proof of their identity, lack of documentation becomes the source of their social, economic and political exclusion. A stateless person is one ‘who is not considered as a national by 1 any State under the operation of its laws.’ The practical manifestation of statelessness is ordinarily the inability to access documentation; a state that does not recognise a person as a national will also not take responsibility for their documentation. Persons who have been denationalised will often have their documentation forcibly removed. Those stateless persons who are undocumented from birth will most likely never, without legal assistance, know what it is to hold an ID with their name on it. In some cases, people only discover they are stateless during deportation proceedings when no country will issue an emergency travel document to authorise their deportation. In the African context, statelessness is often confused with a lack of belonging. Doubts as to whether statelessness can exist in Africa are thus usually centred around notions of the large African family and cultural assumptions; how can an African be stateless if he, as all Africans, comes from an identifiable town/village and has an extended family or a chief who can vouch for him? However, a stateless person may well have an established family and home life and may well feel a real sense of belonging in their place of origin. Being stateless does not imply that a person has no roots. Also, while many Africans do come from an identifiable place and family, exceptions exist in the context of forced migration that is a reality across Africa.

In reality, nationality is not a matter of how much a person feels that he belongs in or comes from any particular place. The crux of the matter is whether he qualifies under the law and is considered a national by the state in question.

Documentation is usually the issue that will bring statelessness to your doorstep as an attorney, paralegal or social worker. People

1

Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons.

Introduction

1 Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide

who are unable to access documentation will often require assistance in accessing their legal rights, either as a citizen or as a stateless person. Such clients will ordinarily not identify their problem as one of access to nationality or statelessness, but rather as inability to access a birth certificate, an identity document, a passport, social services or economic participation. The task of a legal practitioner or social worker to assist such persons is challenging on many levels. There is a marked lack of understanding of the problem of statelessness amongst the state authorities who are best positioned to prevent or reduce it. Statelessness is a little-known concept even in the human rights field. Further, few legal mechanisms exist to cope with stateless persons in South Africa, as in most African countries. In absence of signature and ratification of the UN statelessness treaties or a dedicated domestic legal framework, assisting a person who is stateless is therefore a daunting task that requires the creative use 2 of a combination of international customary law orjus cogens, human rights law and principles, and South African constitutional law, citizenship and immigration law and administrative law. Having identified this legal vacuum, Lawyers for Human Rights (LHR) launched a Statelessness Project in March 2011. This guide was drafted with the intention to aid other attorneys, paralegals and social workers in promoting access to citizenship and combating statelessness on our territory. The guide is a compendium of lessons learned in our effort to assist clients in accessing nationality. It is by no means a complete and fixed composition; it is a work in progress that will be updated over time with relevant legislation, policy and practice. LHR is hopeful that this guide will assist in demystifying the current legal framework as it relates to questions of nationality and statelessness, and will provide us all with the tools to play an active role in the ongoing reform of this field of law. The guide begins in section 2 by defining some relevant concepts and terms in the field of citizenship and statelessness. Section 3 outlines the international and South African laws that can be used to resolve clients’ problems.

Section 4 takes you step-by-step through how to assess a client’s citizenship or stateless status, with the ultimate goal of making a plan of action to resolve the client’s problem.

Section 5 is broken up into specific populations of concern and focuses on the solutions available to resolve your client’s problem.

2

Jus cogens(from Latin: compelling law; English: peremptory norm) refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted. http://www.law.cornell.edu/wex/jus_cogens (accessed 9 September 2013).

2 Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide

Section 6 focuses on how to prevent statelessness through assisting children in need of care and protection, such as unaccompanied foreign minors, orphans and foundlings, to access birth registration, immigration status and a path to nationality.

Section 7 is a checklist with strategies to assist different types of clients. It is a summary of legal solutions outlined in sections 5 and 6. This checklist will help ensure that you consider all possible legal options for each client. Section 8 takes you through how to represent stateless persons who are in immigration detention with the goal of release and path to citizenship in South Africa. Section 9 touches on the importance of advocacy in this area of law due to the critical need for law reform. Section 10 consists of annexures that are intended to assist practitioners, such as relevant forms and South African citizenship laws and regulations.

Introduction

3 Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide

Case study

3

“It is painful to see my daughter growing full of dreams and developing every day into a more clever person, knowing deep inside she has an uncertain future.”

In reported efforts to discourage emigration of its nationals, Cuba assigns ‘permanent emigrant status’ to any person who departs the country for a certain period (previously over 11 months, now increased to 24 months). Couples are not permitted to travel together without fear of losing their right to residence. 3 In the case of Maria, who was born in South Africa to Cuban parents, the Cuban Embassy in South Africa issued a letter confirming that she is not recognised as a national due to her parents’ emigration status. Her parents presented this letter to Home Affairs in an effort to access South African citizenship for the child under section 2(2) of the Citizenship Act, which provides citizenship for children born on the territory who are stateless. Home Affairs responded that the child should be given permanent residence, not citizenship. However, even her three permanent residence applications have not been processed. The parents discovered this problem when the child’s grandmother in Cuba was ill. They could not obtain a travel document for their four-year-old to go from South Africa to Cuba to meet her grandmother because neither country would recognise her as a citizen. This case is illustrative of the challenges that remain in enforcing the right to nationality for stateless children born in South Africa. In 2014 the High Court of South Africa declared Maria to be a South Africa citizen by birth in terms of section 2(2) of the Citizenship Act. The Minister of Home Affairs was also ordered to make a regulation to facilitate the implementation of this section to allow more people to access it.

“Sometimes as a mother I try to understand. Wow, my child, the minute she was born she was brought into this nightmare, that is being a ‘stateless person’. How is it possible a child can be born and at the same time, the most elemental right that any human being is entitled to is denied? I have been going through diverse feelings: scared for the future of my child, hopeless when no one seemed to be sensitive about her future, though the law states she is entitled to citizenship. But bureaucracy is blind and careless. The law does not apply itself, but needs to be put into practice.”

Name has been changed to protect her identity.

Case study

5 Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide