How can a mother with an expired visa register her children?
1)
How can a mother with an
expired visa register her children?
2)
My children birth cannot
be registered , I am illegal
3)
I have children born here
but I am not documented
4)
I am a foreigner , my
children born here but no papers what to do
Sa Migration - 09 September 2022
The short answer
There are a few possible options, but the best route may be to get legal
help.
The whole question
My girlfriend is from Zimbabwe. Her visa has expired but her passport is
still valid. She and her children (aged three and five) have been with me
at my home for the last two years. Both children were born in South Africa but,
for whatever reason, they were never issued with any registration papers - only
the hospital card. We urgently need birth certificates or ID numbers for the
children as the five-year-old needs to enrol in school. Currently they are both
attending a registered creche that does not require any documents.
I have been in South Africa since 1984 and am a permanent resident with
an ID number. I am prepared, with pleasure, to have the children under my name
as we are living as a loving family. My girlfriend is worried about making
noise at Home Affairs because of her visa status, even though we know that the
Constitution guarantees an identification to every child born here regardless
of the parents' race, nationality or status.
Despite numerous attempts with Home Affairs, we have been unsuccessful.
After queuing for four hours every time, we get mixed messages about what
we need to do. The bribing option has been offered to us but we are law-abiding
people and want to do this legally.
The long answer
Firstly, as the children were not registered within thirty days of
birth, as is required by law, you would need to apply for late registration of
birth. If it is after 1 year but before 15 years, you would need to give Home
Affairs the following documents:
- A completed Form, together with written
reasons why the birth wasn’t notified, and as many as possible of the
following documents to confirm the child’s identity as are relevant, given
their age:
- A certificate from the hospital or maternity
home where the child was born. The certificate must be signed by the
person in charge, and contain the institution's official stamp;
- Official confirmation of the child's personal
details, extracted from the school register of the first school attended
by the child. The confirmation must be on the school's official
letterhead, be signed by the principal, and contain the school's official
stamp. (This could refer also to the creche they presently attend.);
- The child's baptismal certificate – if
relevant;
- Sworn affidavits by the parents;
- A clinic card.
There was a great constitutional victory for unmarried fathers on 22
September 2021, when the Constitutional Court declared Section 10 of the Births
and Death Registration Act (BDRA) unconstitutional and ordered it to be deleted
entirely from the BDRA. It was found to be unconstitutional because it did not
allow unmarried fathers to register their children’s births in their name when
the mother could not do so or was unwilling to do so, or when the mother could
not be present. The judgment specifically mentioned the problem of undocumented
mothers “…who live and give birth to children in South Africa and are
unable to register the births of these children. Third, another difficulty
arises as a result of the requirement that parents, who are non-South African
citizens, must produce a certified copy of a valid passport or visa.”
All of the above left children without birth certificates.
The Centre for Child Law, which took the case to the Constitutional
Court and was represented by Lawyers for Human Rights, said that children are
vulnerable members of society who were even more vulnerable when they don't
have valid birth certificates because, not only could they be excluded
from education, social assistance and health care but, crucially, could be
excluded from access to their nationality and become stateless.
As you rightly said in your email, the Constitution guarantees the right
of every child born here to an identity, and the 2021 court judgment means that
this right must now be realised. The Constitutional Court found that it was not
justified to distinguish between children born to married parents and children
born to unmarried parents when it came to deciding what surname could be given
to a child. Section 10 penalised children born to unmarried parents and was
thus unconstitutional. Unmarried fathers will now be able to register their
children under their surname, in the absence of the mother or without
her consent.
But although this was a crucial victory for children and unmarried
fathers, it will not solve your problem with Home Affairs as you are not the
children’s biological father.
Given that the visa of your Zimbabwean girlfriend and mother of the children
has expired, she obviously does not wish to expose herself to possible
deportation by going to Home Affairs to do the late registration of birth for
the children. It would seem that your choices are either to sort out her visa
with Home Affairs, which may well be a difficult and lengthy process involving
your girlfriend returning to Zimbabwe and re-applying for a visa from there, or
to legalise your own relationship with the children. This could be by adopting
them.
Adoption of South African children is done in terms of the Children’s
Act, 2005 (Act 38 of 2005) and is administered by the Department of Social
Development, while the notice of adoption must be recorded by Home Affairs in
the birth registration of the children.
Under the Children’s Act, written consent to the adoption must be given
by the parent or parents or legal guardian of the children. This consent (Form
61) must be signed in the presence of the presiding officer of the Children’s
Court who will then attest to the signature. This written consent can be
withdrawn by the person giving it within 60 days if they change their mind.
Alternately, if you were to marry your girlfriend to legalise your
relationship with the children, the following documents would be required by
Home Affairs to marry you, according to their website:
"On the day of the marriage a couple must present the following
documents to the person officiating at the wedding:
- Identity documents (for each person getting
married);
- If a foreign national is marrying a South African
citizen, they should both present their valid passports as well as a
completed BI-31 Form (Declaration for the Purpose of Marriage,
Letter of no impediment);
- If any of the persons getting married are
divorced, then the final decree of divorce should be furnished;
- If any of the persons getting married are
widowed, the deceased spouse’s death certificate must be submitted.
Because these are all weighty matters, perhaps you should approach an
organisation like Sa Migration , us to advise on your best options, given their
extensive experience in dealing with Home Affairs. They have a special
statelessness unit in Johannesburg.
www.samigration.com
1)
How can a mother with an
expired visa register her children?
2)
My children birth cannot
be registered , I am illegal
3)
I have children born here
but I am not documented
4)
I am a foreigner , my
children born here but no papers what to do
Sa Migration - 09 September 2022
The short answer
There are a few possible options, but the best route may be to get legal
help.
The whole question
My girlfriend is from Zimbabwe. Her visa has expired but her passport is
still valid. She and her children (aged three and five) have been with me
at my home for the last two years. Both children were born in South Africa but,
for whatever reason, they were never issued with any registration papers - only
the hospital card. We urgently need birth certificates or ID numbers for the
children as the five-year-old needs to enrol in school. Currently they are both
attending a registered creche that does not require any documents.
I have been in South Africa since 1984 and am a permanent resident with
an ID number. I am prepared, with pleasure, to have the children under my name
as we are living as a loving family. My girlfriend is worried about making
noise at Home Affairs because of her visa status, even though we know that the
Constitution guarantees an identification to every child born here regardless
of the parents' race, nationality or status.
Despite numerous attempts with Home Affairs, we have been unsuccessful.
After queuing for four hours every time, we get mixed messages about what
we need to do. The bribing option has been offered to us but we are law-abiding
people and want to do this legally.
The long answer
Firstly, as the children were not registered within thirty days of
birth, as is required by law, you would need to apply for late registration of
birth. If it is after 1 year but before 15 years, you would need to give Home
Affairs the following documents:
- A completed Form, together with written
reasons why the birth wasn’t notified, and as many as possible of the
following documents to confirm the child’s identity as are relevant, given
their age:
- A certificate from the hospital or maternity
home where the child was born. The certificate must be signed by the
person in charge, and contain the institution's official stamp;
- Official confirmation of the child's personal
details, extracted from the school register of the first school attended
by the child. The confirmation must be on the school's official
letterhead, be signed by the principal, and contain the school's official
stamp. (This could refer also to the creche they presently attend.);
- The child's baptismal certificate – if
relevant;
- Sworn affidavits by the parents;
- A clinic card.
There was a great constitutional victory for unmarried fathers on 22
September 2021, when the Constitutional Court declared Section 10 of the Births
and Death Registration Act (BDRA) unconstitutional and ordered it to be deleted
entirely from the BDRA. It was found to be unconstitutional because it did not
allow unmarried fathers to register their children’s births in their name when
the mother could not do so or was unwilling to do so, or when the mother could
not be present. The judgment specifically mentioned the problem of undocumented
mothers “…who live and give birth to children in South Africa and are
unable to register the births of these children. Third, another difficulty
arises as a result of the requirement that parents, who are non-South African
citizens, must produce a certified copy of a valid passport or visa.”
All of the above left children without birth certificates.
The Centre for Child Law, which took the case to the Constitutional
Court and was represented by Lawyers for Human Rights, said that children are
vulnerable members of society who were even more vulnerable when they don't
have valid birth certificates because, not only could they be excluded
from education, social assistance and health care but, crucially, could be
excluded from access to their nationality and become stateless.
As you rightly said in your email, the Constitution guarantees the right
of every child born here to an identity, and the 2021 court judgment means that
this right must now be realised. The Constitutional Court found that it was not
justified to distinguish between children born to married parents and children
born to unmarried parents when it came to deciding what surname could be given
to a child. Section 10 penalised children born to unmarried parents and was
thus unconstitutional. Unmarried fathers will now be able to register their
children under their surname, in the absence of the mother or without
her consent.
But although this was a crucial victory for children and unmarried
fathers, it will not solve your problem with Home Affairs as you are not the
children’s biological father.
Given that the visa of your Zimbabwean girlfriend and mother of the children
has expired, she obviously does not wish to expose herself to possible
deportation by going to Home Affairs to do the late registration of birth for
the children. It would seem that your choices are either to sort out her visa
with Home Affairs, which may well be a difficult and lengthy process involving
your girlfriend returning to Zimbabwe and re-applying for a visa from there, or
to legalise your own relationship with the children. This could be by adopting
them.
Adoption of South African children is done in terms of the Children’s
Act, 2005 (Act 38 of 2005) and is administered by the Department of Social
Development, while the notice of adoption must be recorded by Home Affairs in
the birth registration of the children.
Under the Children’s Act, written consent to the adoption must be given
by the parent or parents or legal guardian of the children. This consent (Form
61) must be signed in the presence of the presiding officer of the Children’s
Court who will then attest to the signature. This written consent can be
withdrawn by the person giving it within 60 days if they change their mind.
Alternately, if you were to marry your girlfriend to legalise your
relationship with the children, the following documents would be required by
Home Affairs to marry you, according to their website:
"On the day of the marriage a couple must present the following
documents to the person officiating at the wedding:
- Identity documents (for each person getting
married);
- If a foreign national is marrying a South African
citizen, they should both present their valid passports as well as a
completed BI-31 Form (Declaration for the Purpose of Marriage,
Letter of no impediment);
- If any of the persons getting married are
divorced, then the final decree of divorce should be furnished;
- If any of the persons getting married are
widowed, the deceased spouse’s death certificate must be submitted.
Because these are all weighty matters, perhaps you should approach an
organisation like Sa Migration , us to advise on your best options, given their
extensive experience in dealing with Home Affairs. They have a special
statelessness unit in Johannesburg.
www.samigration.com
