PRESS STATEMENT: LHR makes statelessness submissions before Parliament
Lawyers for Human Rights (LHR) on Monday briefed Parliament’s portfolio committee on home affairs on the escalating number of stateless people in South Africa.
Statelessness is caused by state succession, gaps in various countries’ law (both internally and as states relate to one another), denationalisation, dual nationalities, unaccompanied minors and mixed migration, a lack of proof of nationality, ID fraud, communities living trans-border lives, parents that have not passed on nationality and children that have been raised by single fathers.
A stateless person is someone who “is not considered as a national by any state under the operation of its laws”.
A significant challenge is the lack of any dedicated identification and protection mechanism for the stateless in South Africa.
LHR’s primary recommendation was that South Africa honour its 2011 pledge to sign and ratify the UN Conventions on Statelessness by the end of 2013.
An important measure to avoid statelessness at birth is to provide nationality to children born in the country who would otherwise be stateless. LHR is concerned that the South African Citizenship Act No. 88 of 1995, which provides citizenship to children born in South Africa who are otherwise stateless, fails in practice to protect such children given that there is no accompanying regulation or application procedure. LHR recommended the addition of such a regulation and a standard application process.
The chairperson asked LHR about international practices around registering a child whose parents are undocumented or when the child was born outside of a registered health facility. LHR legal counselor Rosalind Elphick replied that it would be ideal for parents to have official documents and then complete birth registration, but in other instances, an affidavit could serve the same purpose. LHR legal counselor Jessica George noted that connecting hospitals to home affairs’ system so that children would be registered immediately after birth is a good practice to confirm that the parents are indeed the parents of the child. Yet LHR has seen - even in connected hospitals - that mothers are refused birth registration if they are undocumented.
The committee raised fears that granting residence to stateless people would create a “statelessness explosion”. In response, LHR proposed the adoption of a procedure requiring applicants to act in good faith to confirm and present their story, as acting in bad faith would prompt the department to withdraw protection (subject to due process). LHR also noted that statelessness is not equivalent to lack of documentation. Statelessness is a legal status that can be verified through assessing each case, studying applicable law, communicating with foreign missions and researching implementation of nationality law.
The committee said undocumented people were a concern for national security and that home affairs was planning around the issue. Elphick responded that undocumented people in the country was a concern that should be addressed appropriately. Documenting statelessness provides the department with the means to do so.
Elphick told the committee that LHR had reached over 2 000 people from over 20 countries since the launch of the Refugee and Migrant Rights Programme’s Statelessness Project in March 2011, with most clients coming from Zimbabwe.
Elphick said there were 3.7-million orphans in South Africa, an unknown number of whom were at risk of statelessness due to foreign parentage. A large number of Zimbabweans had been denationalised but that there was no way of confirming how many had crossed over to South Africa. There were 600 000 ID fraud cases that have contributed to statelessness, as many people who have had their IDs withdrawn are unable to show proof that they are the true ID holder and should have their identity reinstated.
Elphick said in the absence of a protection procedure from home affairs, quantifying the number of stateless people was still be a challenge especially with such people subject to repeated and arbitrary arrest and detention. Such detention is often arbitrary given that many stateless persons cannot be deported to any country.
George highlighted that in terms of the identification and protection mechanism, LHR recommended in the short term that Section 31(2)(b) of the Immigration Act No 13 of 2002 be amended. Currently, the minister has complete discretion to grant permanent residence to foreigners with “special circumstances.” To comply with the 1954 Convention, this provision should be amended to remove the discretion given to the home affairs minister to provide permanent residence in cases where the applicant is stateless. There should be addition of a regulation to give clarity on Section 31(2)(b) regarding how to apply and how officials determine stateless status in line with international law. In the alternative, said George, the Immigration Act could be amended to provide expressly for “stateless status” to which the rights of an identity document and other Convention rights would attach.
LHR recommended that in the long term South Africa should draft new legislation to mirror the 1954 Convention Relating to the Status of Stateless Persons so as to give clarity and a way forward on some of the issues concerning statelessness.
George said the requirement for South Africans born abroad to present foreign birth certificates to apply for citizenship was a barrier because many countries still have very low rates of birth registration. Such a requirement could not be an absolute bar to South African citizenship and so the Births and Deaths Act should be amended on this point, to allow such applicants to be interviewed and to present other forms of proof.
Elphick added there was a challenge to late birth registration with applicants being turned down without written reason, which denied them the right of appeal. The recommendation was for the department to implement regulations that protect the rights of applicants to due process and to ensure that no strict requirements of documentary proof of life are enforced on applicants.
LHR noted that in its 2011 pledge, South Africa stated it would sign and ratify both stateless conventions following an internal consultative process. LHR is delighted to take part and contribute recommendations and expertise during this process and moving into 2013.