Home Affairs ordered to allow undocumented parents to register their children

The Western Cape High Court has ordered the Department of Home Affairs to stop turning away parents seeking to register their children’s births simply because they cannot produce valid passports, visas or other immigration documents. In a judgment handed down by a full bench, the court found that Home Affairs had acted unlawfully by refusing to accept or process birth registration applications where one or both parents were undocumented. The case was brought by 18 applicants, including parents whose children had been denied birth certificates, adults who had never been registered at birth and Refugee Social Services.

The Scalabrini Centre of Cape Town participated as a friend of the court. The court found that Home Affairs officials had continued to disregard established legal principles requiring them to process birth registration applications even where a parent lacked valid immigration documents. “The complaint is not that the law is unsettled but that the settled law is not being applied,” read the court judgment.

The court then ordered the Director-General of Home Affairs to register the births of the affected children and issue birth certificates within 60 days. While the department retains the power to verify information and investigate applications, officials may no longer refuse to process an application solely because a parent cannot produce a valid passport, visa or permit. The judgment also declared several provisions of the Births and Deaths Registration Regulations unconstitutional, including requirements compelling foreign parents to produce valid immigration or asylum documents before their children’s births could be registered.

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The declaration of invalidity has been suspended for 18 months to give the Minister of Home Affairs time to amend the regulations. In the meantime, the court ordered that the relevant documents should only be required where they are available.

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