The adverse effect of immigration laws on a migrant child's right to family life : a reminder of the South African Nandutu case

Abstract

A child’s right to grow up with its parents is presented in articles 9 and 25 of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of a Child, respectively. South Africa has ratified both treaties, and thus has a duty under international children’s law to protect children’s rights in domestic South African law. At the national level, section 28 of the Constitution of the Republic of South Africa, 1996, contains a variety of rights of children. Particularly, section 28(1)(b), akin to international children’s law, protects a child’s right to family or parental care. Using a child-rights-based approach, guided by the rationality of the principle of best interests of the child and a child’s right to life, this article seeks to appraise the 2019 judgment of the South African Constitutional Court in Nandutu v the Minister of Home Affairs, in which the Court declared reg 9(9)(a) of South Africa’s Immigration Regulation of 2014 inconsistent with the Constitution. In analysing this decision, legislation, and case law, this article further aims to highlight the significance of Nandutu, through the lens of a migrant child’s right to family life.