Sloth-Nielsen, J., Collinson, J. and Spalding, A. (2023) Rights Claims of Citizen Children of Foreign National Parents in South Africa, the United Kingdom, and the European Court of Human Rights: hierarchies of ‘illegality’ and deservingness. International Journal of Law, Policy and the Family, 37 (1). ebad019. ISSN 1360-9939
Abstract
This article examines the South African High Court judgement in TR & others v Minister of Home Affairs & others, which is the first time that a South African court has addressed the constitutional rights of children in the immigration context. In this case, constitutional rights claims were made by South African citizen children because South African immigration law deemed a foreign national parent to be an ‘illegal alien’, subject to expulsion, as soon their spousal relationship with a South African citizen had broken down. The law allowed no other outcome, other than expulsion, regardless of the impact on the affected children. We argue, therefore, that although the High Court deployed the language of children’s dignity and best interests, TR is not really a decision about children at all. Instead, it is a judgement about whether the parents’ deserved the status of ‘illegality’, and its consequences, which had been imposed by South African immigration law. This focus on the deservingness of the parents, rather than the best interests of the children, can be found in other jurisdictions and this article explores how the law deals with similar circumstances in the UK and the European Court of Human Rights. This article concludes by arguing that Article 3 CRC requires that ‘the sins and traumas of fathers and mothers should not be visited on their children’ and that this should be foundational to the best interests of the child provision in the South African constitution in the immigration context.
Metadata
Item Type: | Article |
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Authors/Creators: |
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Copyright, Publisher and Additional Information: | © The Author(s) 2023. Published by Oxford University Press. All rights reserved. This is an author produced version of an article published in International Journal of Law, Policy and the Family. Uploaded in accordance with the publisher's self-archiving policy. |
Keywords: | Migration law; Children; Citizenship; Visas; Removal; Deportation; Expulsion; South Africa; European Convention on Human Rights; UN Convention on the Rights of the Child |
Dates: |
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Institution: | The University of Leeds |
Academic Units: | The University of Leeds > Faculty of Education, Social Sciences and Law (Leeds) > School of Law (Leeds) |
Depositing User: | Symplectic Publications |
Date Deposited: | 31 Aug 2023 15:25 |
Last Modified: | 31 Aug 2023 15:25 |
Status: | Published |
Publisher: | Oxford University Press |
Identification Number: | 10.1093/lawfam/ebad019 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:202616 |
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Filename: TR - revised after journal review - anon.pdf
