Following the Department of Home Affairs’ confirmation that at least 12 babies have been born at the Sherwood Hall in recent weeks, immigration lawyer Ashraf Essop has clarified the legal implications and citizenship status of children born in South Africa to foreign nationals.
Addressing the legal framework, Essop outlined that the South African Citizenship Act dictates citizenship is acquired in one of four ways:
1. Birth within the Republic: Being born in South Africa to parents who are South African citizens.
2. Citizenship by Descent: Being born outside the Republic to one or both parents who are South African citizens.
3. Naturalization: Acquiring citizenship through processes established by the Immigration Act or Refugees Act.
4. Honorary Citizenship: Being granted citizenship at the Minister’s discretion in recognition of an outstanding achievement.
Citizenship for Children of Foreign Nationals
Essop emphasized a critical legal distinction: merely being born in South Africa does not automatically entitle a child to citizenship.
For children born to parents who are not lawfully permitted to reside in the Republic—such as those without permanent residence or who are undocumented—the child is only entitled to citizenship under specific conditions outlined in Section 2(4)B, subsections 1 and 2 of the Citizenship Act. To prevent statelessness, which the Constitution does not tolerate, the child must meet two requirements:
– The child must not hold the citizenship of another country and must have no right to claim such citizenship.
– The birth must be officially registered in terms of the Births and Deaths Registration Act.
Legal Precedent
Essop cited the recent Constitutional Court case of Josiah as the leading legal precedent on this matter. In this case, a minor child was born in South Africa to Angolan refugees who had no right to Angolan citizenship and were declared stateless. Because the child was born in the Republic and the birth was registered in accordance with the law, the child was legally recognized as a citizen by birth.
Addressing Public Misconceptions
Addressing widespread public misconceptions, Essop noted that many incorrectly believe a child automatically gains South African citizenship simply by being born within the country’s borders. He attributed this confusion to the United States’ system of birthright citizenship, which is unique to the U.S. Constitution and grants citizenship to anyone born on U.S. soil, alongside a diversity lottery that grants up to 50,000 citizenships. Essop stated that this American legal concept has incorrectly crept into the South African public’s understanding of local law.
Birth Certificates vs. Citizenship
Clarifying the documentation process, Essop explained that if a child is born to a South African citizen, they are entitled to citizenship by virtue of their parent. However, if both parents are foreign nationals with no citizenship linked to the Republic, the child is not entitled to South African citizenship. In such cases, the child is only entitled to a birth certificate, which Essop stressed is not, in itself, proof of citizenship.