The short answer
The child will have to apply for temporary visas to be legal, and apply for citizenship when they are 18 if they have only lived in South Africa.
The whole question
Dear Athalie
I am a permanent resident in South Africa, although I come from the DRC, so when my son was born here in October 2014, he was issued a South African birth certificate.
Recently, we tried to apply for a passport for him but Home Affairs told us that we first need to apply for confirmation of his status, which we duly did. But Home Affairs responded that he is not a South African because the law changed shortly before he was born. They said we should register him under his mother's refugee status but, when we tried this, we were denied because his birth certificate was registered under my ID number.
They told us to take all our documents to VFS for help.
The long answer
The South African Citizenship Act of 1995 was amended in 2010 and the amended version came into operation on 1 January 2013. Unfortunately, it means that children of permanent residents born after October 2014 no longer qualify for automatic citizenship or permanent residency. It means that children born after October 2014 will need a visa from Home Affairs.
Intergate Immigration sums it up: “Previously children who were born to permanent residency holders were granted citizenship by virtue of the fact that their parents were South African. This was reflected in their birth certificates where they were given an ID number.”
The law now says:
“Any person born in the Republic of parents who have been admitted into the Republic for permanent residence and who is not a South African citizen, qualifies to be a South African citizen by birth, if:
“(a) he or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and
“(b) his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992).”
In other words, the law now says that your son can only become a South African citizen after he is 18 years old and has lived in South Africa all his life. In the meantime, he will have to apply for temporary visas like the relative’s visa, and also apply for permanent residence before he can apply for citizenship.
But the fact that your son, who was born on 29 October 2014, was given a South African ID number on 4 December 2014 would seem to indicate that Home Affairs did confirm his citizenship. Having a South African ID must surely mean that you are legally a South African citizen, despite the fact of the new legislation that came in at the same time as his birth – October 2014. But inexplicably, Home Affairs has chosen not to recognise that they themselves conferred the ID on your son.
VFS should certainly take the fact of his South African ID into account in their response. If they do not, and if the guidance that VFS gives is not satisfactory, it might be worth asking one of the following organisations, who have all had extensive experience dealing with Home Affairs, for help and advice.
Here are their contact details:
Lawyers for Human Rights:
Musina: 015 534 2203,
Durban: 031 301 0531,
Pretoria: 012 3202943
Johannesburg: 011 339 1960.
For more information on the constitutional rights of children born to non-South African parents: Liesl Muller at 011 339 1960 or email liesl@lhr.org.za
The Scalabrini Centre of Cape Town:
Email: info@scalabrini.org.za
Tel: 021 465 6433.
You can also call the Legal Support Hotline on 066 076 8845.
To get in touch with their Advocacy Programme, you can call 0782603536 or send a please-call. This is operational between 9am and 4pm, Monday to Friday.
Legal Resources Centre:
Email: info@lrc.org.za
Tel: Johannesburg: 011 836 9831
Wishing you the best,
Athalie
Answered on Dec. 1, 2022, 9:41 a.m.
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