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12. R (Begum) v Special Immigration Appeals Commission; R (Begum) v Secretary of State for the Home Department; Begum v Secretary of State for the Home Department [2021] UKSC 7, [2021] AC 765
- Author:
- Eric Fripp
- Publication Date:
- 07-2022
- Content Type:
- Journal Article
- Journal:
- Statelessness & Citizenship Review
- Institution:
- Peter McMullin Centre on Statelessness, Melbourne Law School
- Abstract:
- The decision of the Supreme Court represents yet another prompt to reflection asto the very wide provision for deprivation of British citizenship bytheSSHD undertheBNA 1981s 40(2). By making clear the paucity of domestic law restraints upon the SSHD, the decision may ultimately have the effect of moving attention to the question—which the Supreme Court did not address —of whether domestic law safeguards, if not reformed, might be found so insufficient as to fall short of the international law norm prohibiting arbitrary deprivation of nationality, which the European Court of Human Rights in recent cases has been willing to find applicable through the broader art 8 ECHRrights. That question looms over the future but will,for the moment,remain unresolved. It also raises important questions concerning the absence of protection from serious harms which may, given the technical nature of the statelessness definition, not be alleviated by protection from statelessness, and leaves to be resolved on the facts of future cases important issues of child law, including the international human rights protections of the CRC89.
- Topic:
- Law, Children, Citizenship, Courts, and Stateless Population
- Political Geography:
- United Kingdom and Europe
13. The South African Constitutional Court Decides Against Statelessness and in Favour of Children
- Author:
- Mihloti Basil Sherinda and Jonathan Klaaren
- Publication Date:
- 07-2022
- Content Type:
- Journal Article
- Journal:
- Statelessness & Citizenship Review
- Institution:
- Peter McMullin Centre on Statelessness, Melbourne Law School
- Abstract:
- Shrinking citizenship is of great concern for those facing the prospect of reduction in citizenship statuses,not from two to one but from some to none—ieto the status of statelessness. Research in South Africa has only recently begun to pay increased attention to the problem of childhood statelessness, itself only seeing sustained interest at the global level for just over a decade.39The DHA does not keep official statistics on statelessness, not mentioning the topic in its annual reports through 2015.40In 2017, one of the leading NGOs addressing the issue provided legal assistance to 92 children (half born in South Africa) with problems of statelessness or at risk of statelessness.41Following a wider human rights definition,rather than the narrower UNHCR approach, South African legislation is mostly in line with international legal standards on the prevention and reduction of statelessness, including for children.42However, the implementation of those laws leaves much to be desired due to the DHA’s tendency to support restrictive interpretations of the provisions in its regulations and policies.43Chisuseclarifies the principle of the statutory interpretive presumption against retrospectivity and its application to legislation in a complex regulatory framework,which could also beinterpreted to extinguish existing citizenship rights. When read in its fullness, the historical approach adopted by the Constitutional Court led to a persuasive decision, handing success to public interest litigants acting on behalf of those faced with adegree of statelessness. Especially when seen in the context of a shrinking bureaucratic regard for citizenship applicants, the Constitutional Court continues to place itself at the centre of the rights-regarding movement within South African citizenship law.44The decision confirms the trend in childhood statelessness cases wherein the lower courts have found against the DHA,45including that of a child born to two Cuban parents where Cuba refused to extend citizenship to the child (instructing the DHA toissue citizenship to the child); a child born to refugees and reaching the age of 18(holding that the DHA’s delay in formulating guidelines for applications was not a sufficient basis to deny children the opportunity for naturalisation); and children with an unmarried South African father and a foreign national mother (ruling that the children should be properly registered so that they could access South African citizenship)
- Topic:
- Children, Citizenship, Courts, and Stateless Population
- Political Geography:
- Africa and South Africa