Home Affairs says delays are due to a shortage of immigration inspectors. Picture: SOWETAN
Home Affairs says delays are due to a shortage of immigration inspectors. Picture: SOWETAN

The department of home affairs’ plan to discontinue issuing birth certificates to children of foreigners has come under fire from lobby groups who argue that it is in contravention of international laws.

Where previously all new babies were issued with birth certificates, as is required by the constitution and international law on children’s rights, the new regulations propose that foreign children be issued with a mere “confirmation of birth” that is “not a birth certificate”, according to the new form.

They will then send the confirmation to their embassies or countries of origin for birth certificates.

The department has published these proposed new regulations to the Births and Deaths Registration Act for public comment. The deadline for the comments is Friday.  

The lobby groups, including the Centre for Child Law and Lawyers for Human Rights, said on Thursday that in terms of international law, it is the responsibility of the country of birth to issue a birth certificate. This is regardless of whether citizenship is also granted or not. 

They further pointed out that presenting “confirmation of birth” to their embassy in order to obtain a birth certificate from their country of nationality would be particularly harmful to the children of refugees and asylum seekers.

This is mainly because they cannot approach their embassies, which would jeopardise their protection in SA. 

The groups have called on the department not to pursue the amendment.

“Without a birth certificate, children face immense barriers to basic services and human rights such as education, health and social services. The birth certificate also allows stateless children to apply for the safeguards which give them citizenship where they have no other citizenship.

“The constitution requires us to consider the best interests of the child to be paramount in all matters concerning the child [section 28]. Our courts have consistently found that it is in the best interest of the child to have a birth certificate and access to a nationality,” the lobby groups said.

Home Affairs spokesperson Thabo Mokgola said it would be unfair for the department to comment as it is still considering public comment on the issue.

“The department is essentially calling for comments on the draft regulations referred to herein. In this regard, we have not received and considered these submissions and, thus, it would be unfair to expect … us to comment on a matter we have not had an opportunity to consider.”

The department has previously stated that the basic principle of SA citizenship is that a child follows the citizenship or nationality of his or her parents. If one parent is an SA citizen, the child will be a citizen by birth. A foreign child adopted by SA citizens becomes a citizen by descent while a naturalised citizen is one who has complied with the requirements for naturalisation as set out in section 5 of the South African Citizenship Act.

“It is a difficult thing to issue a birth certificate where grounds for citizenship are not established, whether in terms of birth, descent or naturalisation,” according to the department. 

phakathib@businesslive.co.za