Couple in limbo with ‘ghost’ child

Source: Sunday Times, 29/04/2018

James Tomlinson and his wife, Sarah Nandutu, are raising a “ghost”,
and they are expecting another.
The parents â€` from the UK and Uganda â€` likened their three-year-old
son, Joshua, to a ghost this week because his birth registration is
entangled in Department of Home Affairs red tape. So they went to
battle Home Affairs Minister Malusi Gigaba in court last year.
The outcome for the family is bittersweet â€` while their little boy
will finally have the birth certificate they so sorely wanted, they
failed to convince the High Court in Cape Town to amend immigration
regulations that have prevented them from living as a family.
Tomlinson, a British citizen with a South African permanent residency
permit, and Nandutu, a Ugandan citizen, could not register the birth
because Nandutu only has a travel visa.
She was three months pregnant when she travelled to South Africa in
February 2015. They got married and applied for a spousal visa but
her appeal to both the department’s director-general and Gigaba
failed.
This was because the Immigration Act does not allow people to change
their visa status once they are in South Africa. But Nandutu could
not return to Uganda because her child is undocumented. They then
asked the high court to compel Gigaba to tweak the regulations and
reconsider the application.
“At the moment, he [Joshua] is a ghost and we are expecting another
one [in August],” said Tomlinson, who has been in South Africa since
2003.
“We are not able to travel as a family . . . Sarah’s family has never
met Joshua. My father has been very ill and all they want is to meet
my son.”
They are also unable to register Joshua in the local English-medium
school without a birth certificate.
Nandutu, who has a degree in developmental studies, is unable to work
or drive.
“Had they registered this child, that would have given me and my
husband the freedom to go to Uganda and sort out everything from
there,” said Nandutu. “I can’t travel with the child and I can’t
leave the child. Our lives are in suspense. It is very frustrating.”
They were joined by another couple, accountant Ilias Demerlis and
businessman Christakis Ttofalli, in instituting the lawsuit. Demerlis
is from Greece, and Ttofalli is from Cyprus but has South African
citizenship. They have been in a cohabitation agreement since 2013.
It has become very expensive for Demerlis to travel between Greece
and South Africa to renew his travel visa. He waited for three years
for the finalisation of his application â€` which was turned down â€` and
he was prohibited from leaving the country while it was pending. The
couple applied for a spousal visa at the South African embassy in
Greece in 2014 but were told it could not be granted because they had
been together for less than two years.
“I am frustrated,” Demerlis said. “My mother was sick for one year
and I couldn’t get there. Luckily they extended my visa. I could
travel there and she eventually died.”
Ttofalli, who has a bakery in Cape Town, has been in South Africa
since 1985. He said: “[Demerlis] can’t sit home and do nothing. He
will go crazy. How long can you sit at home? He had to wait two
years. If we knew
I can’t travel with the child and I can’t leave the child. Our lives
are in suspense Sarah Nandutu Ugandan citizen
the outcome earlier he could have got back to Greece and applied from
there.”
This month, Acting Judge Daniel Thulare dismissed the joint
application. But he ordered that the home affairs director-
general “assist . . . Joshua in having his birth registered”. He
granted Nandutu and Demerlis leave to appeal to Gigaba to reconsider
their application and waive the prohibitive immigration regulations.
But Thulare said Nandutu’s marriage within two months of arriving in
South Africa did not automatically qualify her for a spousal visa. “A
registrable ritual to prove constitution of family, which is sealed
by [Nandutu] kissing another, is simply not enough to except her to
account for her health, social, economic and security risks to [the
Republic of South Africa] and its people,” Thulare ruled.
He said Demerlis had failed to provide evidence he was capable of
supporting his spouse and that the bank statement he provided to
home affairs was not certified.
But their lawyer, Gary Eisenberg, said the judgment was legally
incompetent and that they were essentially back where they had
started.
The Department of Home Affairs failed to respond to questions.