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On 28 February 2021, the Scalabrini Centre of Cape Town submitted written comments on the draft One-Stop Border Post Policy, which was published in the Government Gazette on 31 December 2020.

Overall, these written comments relate to the provision of international protection to asylum seekers and refugees, and other persons of concern in the context of one-stop border posts; the draft Policy’s omission of plans to prevent bribery and corruption; and concerns regarding the Department of Home Affairs’ capacity constraints in the implementation of a one-stop border post.

We welcome the draft Policy’s initiatives towards regional integration and greater
mobility in the SADC region, and believe the Department of Home Affairs should build on these by pursuing other initiatives originally proposed in the White Paper on International Migration.

Our written comments also highlight that the creation of a one-stop border post, as well as the implementation of measures to ensure greater efficiency at border posts, and in respect of visa processing, must always be in line with South Africa’s obligations in terms of international law.

To read our full written comments, click on the button below.

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In November 2020, the Scalabrini Centre submitted written comments on the Children’s Amendment Bill. These comments were based on Scalabrini’s extensive experience in the area of refugee and migrant rights, and specifically the rights of unaccompanied or separated migrant children (USMC).

The written comments welcomed the inclusion of unaccompanied and separated foreign children in the amendments, but noted some concerns too. Namely, the Scalabrini Centre outlined its concerns about implementation. It also sought to point out that, where other departments would be equally responsible for implementation (or where the actions of another Department impact on the implementation of such amendments), regulations must be published so as to ensure that the best interests of the child are respected, protected, promoted and fulfilled.

Our written comments also noted that, although the financial implications of the Bill were provided, no clear commitment was made in terms of financing the amendments. This is of particularly concern given the recent experience between the national Department and Provincial Departments in respect of the implementation of the NAWONGO judgment in all provinces as per the National Directive to that effect. Despite this directive, the implementation has not taken place across all provinces. Our written comments noted concern that, without a clear undertaking from the National Department of Social Development, the costing provided in the Bill would not be equitably implemented. The written comments then look at a clause-by-clause analysis of the Amendment Bill.

To read the full written submission, click on the button below.

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1. What are the Draft Amendment Regulations on the Citizenship Act?

On 24 July 2020, the South African government published the Draft Amendment Regulations on the Citizenship Act, 1995. These Draft Regulations were open to public comment. The Scalabrini Centre of Cape Town, and other organisations, responded to these Draft Regulations by submitting comments to the South African government.

These Draft Regulations are important because they give effect to the Citizenship Act as amended. They assist in setting out how the Act is implemented. For example, they set out how a person might make an application to citizenship in terms of certain sections of the Citizenship Act.

The Citizenship Act is an important piece of law that sets out who qualifies for South African citizenship. Among others, of particular interest to us is Section 4(3) which states that a child born in South Africa to two parents (who are not South African citizens, or who do not hold permanent residence) qualify to apply for citizenship, upon turning 18, if they have lived in South Africa from birth to 18 years of age, and if their birth is registered in accordance with the provisions of the Births and Deaths Registration Act.

2. How has The Scalabrini Centre of Cape Town reacted to these Draft Regulations?

The Scalabrini Centre has submitted comments on the Draft Regulations. These submissions were endorsed by Centre for Child Law, Lawyers for Human Rights, Nelson Mandela Refugee Rights Clinic, Section 27, Southern Africa Litigation Centre, Southern African Nationality Network, UCT Refugee Rights and SIHMA. You can read the full submissions by clicking the button below.

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3. What was said in the submissions made by The Scalabrini Centre of Cape Town?

In short, the following concerns were raised:

• The Draft Amendment Regulations omit vital provisions regarding the implementation of section 2(2) of the SA Citizenship Act, 1995.
• The Draft Amendment Regulations are ultra vires the empowering provisions in the South African Citizenship Act, 1995.
• The Draft Amendment Provisions fail to comply with established jurisprudence interpreting section 4(3) of the South African Citizenship Act, 1995.
• The Draft Regulations fail to take into account recommendations made by international treaty bodies and are incompatible with international law.
• The Draft Amendment Regulations inhibits South Africa’s potential to fulfil its official pledges and commitments to the international community to prevent, reduce and eradicate statelessness within its borders.
• The Draft Amendment Regulations places restrictions on the rights of citizens naturalised in terms of section 4(3) of the South African Citizenship Act, 1995, thereby impairing their equal enjoyment of the rights, privileges and benefits of citizenship.
• Lastly, public participation in law-making is a key tenet of our democratic system. In the representations it is noted that 24 July to 30 August was the period to make submissions but that the regulations would be finalised 11 working days thereafter which is insufficient time for DHA to properly apply their minds to the submissions. We wish to encourage the government to allow more time for such submissions, and to ensure that the public participation procedure is not reduced to a tick-box approach.

We recommend that the Department amend the Amendment Regulations further so as to ensure that the final promulgated version is in line with guidance and jurisprudence provided by our Courts in relation to the interpretation of the specific provisions to which these Regulations pertain

4. How can I become involved?

Comments on these Draft Regulations were due on 30 August 2020. However, if you would like to endorse our comments please click on the button below. You can edit this template as you want to, and send it to the address provided on the document itself. If you would like a Word version of this document, please email lotte@scalabrini.org.za.

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