Rights claims of citizen children of foreign national parents in South Africa, the UK, and the European Court of Human Rights: hierarchies of ‘illegality’ and deservingness

Abstract

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.