Undocumented parents secure victory after court rules Home Affairs cannot deny birth registration

Undocumented parents have secured a landmark legal victory after the Western Cape High Court ruled that the Department of Home Affairs acted unlawfully by denying birth registrations based on the immigration status of parents. The ruling, issued on Tuesday, 29 July 2026, declared several birth registration regulations unconstitutional and ordered the department to register the births of affected children and issue birth certificates. The decision also extended legal protections to adults whose births were never officially recorded due to abandonment or orphanhood during childhood. The case was brought by 18 applicants, including parents whose children were denied birth certificates due to their immigration status, adults whose own births had never been registered, and Refugee Social Services. The Scalabrini Centre of Cape Town joined the proceedings as a friend of the court. A full bench of judges, comprising Judge President Francis, with Judges Cloete and Mapoma concurring, found that the Department of Home Affairs had violated constitutional rights by refusing to process birth registration applications where parents lacked valid immigration documents. The court emphasized that while birth registration confirms a person’s legal existence, it does not automatically grant South African citizenship. This clarification was critical in addressing government concerns about immigration control. The judges noted that there was no legal basis for equating birth registration with citizenship and stressed that this distinction must be upheld in future policy decisions. The ruling identified four groups of individuals excluded from the birth registration system. These included children born in South Africa where one parent is a South African citizen, permanent resident, or recognized refugee and the other is undocumented; children born to undocumented foreign parents; children whose births were not registered within the required timeframe; and adults whose births were never officially recorded due to abandonment or orphanhood. The court specifically addressed the situation of children with one undocumented parent, stating that Home Affairs officials could not refuse to process birth registration applications solely because a parent could not present a valid passport, visa, or permit. The judges pointed out that previous court rulings had already established that such refusals were unlawful, yet Home Affairs officials continued to ignore the law. The court stated that the issue was not whether the law was unclear, but rather that the settled law was not being followed. Officials had repeatedly rejected applications for eligible children despite legal obligations, leading to prolonged denial of basic legal recognition. As part of its order, the court directed the Director-General of Home Affairs to register the births of affected children and issue birth certificates within 60 days. It retained the department’s authority to verify information where necessary, ensuring compliance with due diligence requirements. Additionally, the court declared unconstitutional regulations requiring foreign parents to submit valid passports, visas, or asylum documents before their children’s births could be registered. Although the declaration of invalidity was temporarily suspended for 18 months to allow the Minister of Home Affairs time to revise the regulations, the court ordered that the provisions be interpreted as requiring such documents only when they were available. Home Affairs may still seek additional evidence and conduct investigations before making a final determination. The judges also ruled that the regulations unlawfully failed to establish a process for the late registration of children born in South Africa to undocumented foreign parents. During the 18-month suspension period, exceptions will be considered on a case-by-case basis.