Nurturing inclusivity: reforming citizenship laws for children born to foreign parents in South Africa

"Six mixed hands are clasped in unity against a background of the South African flag, illustrating the patriotic ideals of the Rainbow Nation.Photo Credit:RapidEye

In South Africa, the concept of citizenship has been politicised and together with democracy has become the foundation for political and economic freedom.

Embedded in South Africa’s Constitution lies a profound declaration: “We the people”. This simple phrase encapsulates the essence of our collective identity, forging a path where diversity is not merely tolerated but celebrated as an essential aspect of our shared humanity. While navigating the complexities of citizenship and belonging, it is crucial to let this inclusive spirit guide South Africa’s progression.

This notion of belonging has a historical backdrop marked by exclusion, dating back to the colonial era and reinforced by the oppressive policies and apartheid regime. Policies such as pass laws and the Bantu Homelands Citizenship Act relegated black South African citizens to ethnic homelands, fostering a sense of foreignness in their land, and designating them as second-class citizens.

The struggle for recognition and rightful placement within their homeland, initiated by black South Africans, still echoes today in the challenges faced by children born to foreign parents within South Africa’s borders. These children are denied legal recognition until they reach adulthood, highlighting an ongoing struggle for acknowledgement.

Citizenship for persons born in South Africa to foreign parents

Section 4(3) of the South African Citizenship Act permits a child born in the country to non-South African parents to apply for citizenship upon reaching the age of majority, provided they have resided in the country since birth and their birth is duly registered in terms of the Births and Deaths Registration Act.

I advocate for reforming this Section by either eliminating the age restriction or lowering the upper age limit for applicants seeking naturalisation under Section 4(3) to 16 years. After scrutinizing the legislative landscape, there appears to be no discernible logic between the imposed age restriction and the principles outlined in the Bill of Rights within the South African Constitution. The proposed reform places emphasis on prioritising the best interests of the child and recognises the importance of a sense of belonging among migrant populations and their children.

During the development of Section 4(3), concerns surfaced in the National Assembly regarding the potential risk associated with granting citizenship without thorough scrutiny. There was apprehension about imposing an increased burden on government resources and the possibility of abuse of state welfare. Additionally, some committee members expressed discomfort at the prospect of granting citizenship to stateless children, as this might inadvertently encourage illegal immigration.

‘By granting equal rights and opportunities to all, South Africa reaffirms its commitment to the foundational values of justice, dignity, and unity upon which our nation stands’.

 The debate essentially weighed morality against legality and the strain on a young and developing state’s resources. Conversations also revolved around the idea of reducing the age of majority to 17 years for “administrative issues”, as South African citizens ordinarily applied for identity documents at the age of 16. However, this proposition faced resistance from the Department of Home Affairs which insisted on maintaining the age limit for Section 4(3) applications as 18 years.

The nature of this parliamentary discussion highlights that at the time of developing Section 4(3), there were proposals to lower the age restriction to enable applications for naturalisation from minors however, these discussions were not further explored and did not make it into the final version of the Act.

Under Section 7(3) of the Citizenship Act, when adult parents renounce their citizenship, their minor children under the age of 18 are also affected and cease to be South African citizens.

Section 2(3)(a) of the Citizenship Act provides a pathway for citizenship by birth for individuals born in South Africa to parents who possess permanent residency, provided that the child has resided in South Africa continuously from birth until reaching the age of majority.

Furthermore, Section 32(2) of the Refugees Act empowers the Children’s Court to intervene in cases involving unaccompanied minors who qualify for refugee status. The court is empowered to facilitate assistance for such children in applying for asylum, recognising the importance of safeguarding their rights and ensuring access to protection under refugee law. Additionally, it is noteworthy that children of South African citizens can make applications for an Identity Book at the age of 16 years.

In essence, while children born in South Africa to foreign parents may face limitations in accessing citizenship rights until they reach the age of 18, there are legal provisions aimed at protecting the rights of refugee children and facilitating their access to asylum. This is particularly relevant for unaccompanied minors who qualify for refugee status.

The question arises as to why South Africa withholds the same age expectation from Section 4(3) applicants, considering that children require vital documentation for fundamental services such as education and healthcare.

The bureaucratic hurdles imposed by Section 4(3) frequently thrust these vulnerable children into a state of precarity, leaving them in limbo until they reach the age of 18. These obstacles not only impede their access to essential services but also undermine their sense of belonging within the South African community.

Indicators of belonging include integration with the host community, living closely with local residents, and a sense of equality with recognised South African citizens. As children grow older and are exposed to schooling and daycare beyond their immediate family, those born to migrant parents tend to develop South African linguistic and cultural competencies at a faster pace than their parents. For children born in South Africa to foreign parents, the acknowledgment of their South African identity is not merely an aspiration. It is inherently intertwined with their lived experiences.

Impact of Legislative Policy on Democracy

The existing legislative framework for the naturalisation of persons born to migrants in South Africa has far-reaching consequences which include perpetuating multigenerational exclusion, fostering conflicts, and enabling discrimination. Instances of xenophobia, tragically prevalent within South Africa, serve as griping manifestations of these consequences. Recent news headlines have underscored this issue, particularly highlighting a case involving a member of the anti-foreigner group known as Operation Dudula who was convicted for instigating violence against migrants. This individual’s incitement was disseminated through WhatsApp and ignited a harrowing chain of events wherein the property of migrants was subjected to destruction and looting.

It is within this hostility and strife that migrants, especially their children find themselves marginalised and disenfranchised while South African citizen minors can obtain identification documentation at age 16. This fundamental issue of age-restrictive citizenship remains unaddressed and continues to marginalise this citizen group.

The impact of being excluded from citizenship and the onerous requirements that Section 4(3) placed on qualifying applicants has far-reaching consequences and deprives this group of persons the constitutional right to choose their trade and occupation as contained in Section 22 of the Constitution.

In the recent case of Rafoneke & Others v Minister of Justice and Correctional Services & Others (Rafoneke), the Constitutional Court grappled with the issue of restricting employment opportunities solely to South African citizens. Rafoneke argued for the unconstitutionality of Section 24(2) of the Legal Practice Act 28 of 2014, which bars foreign nationals from being enrolled as legal practitioners unless they are South African citizens or permanent residents. The Court, in its judgment, emphasised Section 22 of the Constitution, which guarantees citizens the right to freely choose their trade, occupation, or profession, while also empowering the State to regulate these freedoms through legislation.

However, the case raised significant concerns regarding individuals born to foreign parents in South Africa who struggle to assert their constitutional right to South African citizenship, limiting their access to employment and professions. This exclusion deprives them of the full range of constitutional rights enjoyed by South African citizens. The Court’s reluctance to provide relief in Rafoneke underscores the necessity for parliamentary intervention to ensure the protection of the rights of all individuals.

In essence, Rafoneke highlights the negative impact of exclusion from South African citizenship on individuals’ employment opportunities and professional advancement, emphasising the urgent need for legislative reform to safeguard the rights of all individuals, regardless of their citizenship status.

To confront these injustices head-on, a bold revaluation of Section 4(3) is imperative. Eliminating age restrictions or lowering the upper limit for citizenship claims would not only promote inclusivity but also recognise and honour the intrinsic sense of belonging among migrant populations and their descendants. Alternatively, a constitutional amendment enshrining birthright citizenship could serve as a transformative step towards a more equitable society.

 Conclusion

In the pursuit of a genuinely democratic and inclusive South Africa, we cannot afford to overlook the plight of children born to foreign parents within our borders. As we reflect on the painful legacy of exclusion, it is important to embrace the opportunity to rewrite the narrative, championing a vision of citizenship that transcends age and ancestry.

By granting equal rights and opportunities to all, South Africa reaffirms its commitment to the foundational values of justice, dignity, and unity upon which our nation stands.