How can my friend’s child, born in the DRC while her asylum-seeker mother was away, be registered in South Africa?

The long answer

This is a very difficult situation: your friend was granted asylum seeker status in South Africa not because she qualified under the usual immigration laws, but because she had a well-founded fear of persecution and harm if she were to be sent back to the Democratic Republic of Congo (DRC). This is what the non-refoulement principle means: not being sent back because of the terrifying consequences that could well result. South Africa is required to respect this principle. As an asylum seeker, your friend must now wait to be granted refugee status.

But being granted asylum status in South Africa means that she cannot travel back to DRC and then come back to South Africa as if she had not applied for asylum from DRC. Obviously, she felt she had to go to the DRC because of the family tragedy, but it’s not clear how she can justify this, given her status as an asylum seeker who has a well-founded fear of persecution and harm, should she be sent back to DRC.

The child is not stateless – she has a DRC birth certificate – but how it can be explained that she was born in DRC after her mother had acquired asylum seeker status here is not clear. Thus, how she can be registered legally in South Africa is not clear. 

But section 28(2) of the Constitution says: "A child's best interests are of paramount importance in every matter concerning the child." This means that courts have an obligation to prioritise a child's well-being and to consider their physical, emotional, and educational needs when making decisions that affect them.

I would strongly recommend that your friend and the father should approach one of the following organisations, which have extensive knowledge and experience of dealing with the rights of asylum seekers, for help. 

Here are their contact details:

• The Scalabrini Centre of Cape Town 

Email: info@scalabrini.org.za 

Tel:  021 465 6433

• Lawyers for Human Rights

Email: info@lhr.org.za

Tel: Musina 015 534 2203

Durban: 031 301 0531

Pretoria: 012 320 2943

Johannesburg: 011 339 1960

Cape Town: 021 424 8561

• Legal Resources Centre

Email: info@lrc.org.za

Johannesburg: 011 836 9831

Cape Town: 021 481 3000

Durban: 031 301 7572

Wishing you the best,
Athalie