A dispute over whether the children of foreigners born in SA prior to January 2013 and who know no other home than the country should become naturalised citizens when they turn 18 is headed to the Constitutional Court.

The Star reports Home Affairs has taken to the apex court to seek leave to appeal a judgment that ordered it to put in place regulations for the processing of citizenship applications of six youths who dragged it to court.

The SCA ruled last year that it was unlawful of Home Affairs to not allow the six to apply for citizenship, in accordance with the 2013 amendments of the Citizenship Act.

This SCA ruling supported a judgment delivered by the Western Cape High Court in 2017, which went in favour of the six youths. The regulations have not been promulgated since the 2013 amendments, which were adopted to allow children born to foreign parents to apply for naturalisation upon turning 18.

Home Affairs went on to insist that the 2013 amendments were not retroactive, leaving itself in a legal quagmire.

The SCA rejected the department’s position that the six were welcome to apply for refugee status, saying this was ‘conferred on someone whose true home is elsewhere’.

In appeal papers filed at the Constitutional Court, Home Affairs wants the apex court to rule that it was unlawful of the SCA to make an order on administrative functions.

According to The Star report, the department argued that the SCA order was an encroachment on the doctrine of the separation of powers, which gave exclusive powers to Ministers to decide the operational measures of departments.

Representing the six youths, the Legal Resources Centre has asked the Constitutional Court to dismiss the Home Affairs application with costs. The department’s first hurdle in the matter will be convincing the Constitutional Court to grant it leave to appeal.

Full report in The Star (subscription needed)

Minister of Home Affairs v Ali and Others