Confusion as airlines continue to deny children boarding

Source: Tourism Update, 09/01/2019

The Amendment to the Immigration Act was gazetted on November 30
and removes the requirement for children travelling with both
parents on a foreign passport to carry a birth certificate when
they travel.
The following day the Department issued an Advisory on its website
stating the opposite.
Airlines’ check-in staff around the world have been advised to
follow this advisory and not the redrafted regulations that were
gazetted on November 30 and heralded with much fanfare by
government.
Throughout this saga, Home Affairs has been sharply criticised for
not engaging with the travel and tourism sector and this
represents a significant setback for SA’s attempts to win back a
reputation as a child-friendly destination.
Home Affairs has justified the advisory on the basis that it gives
effect to the Children’s Act of 2005.
It is the airlines that have the unwelcome role of administering
Home Affairs’ regulations, as they face penalties if children
arrive without a birth certificate.
A spokesperson for Geneva-based Iata, which uses its Timatic
system to advise check-in staff of its member airlines on what
travel documentation travellers need before boarding a flight to
SA, told Tourism Update that they had been advised by SA
government sources to use the advisory of the DHA website which
states:
“3.1. Where both parents are travelling accompanied by one or more
of their children, such children have to produce valid passports
and a Birth Certificate (BC) for each child travelling.”
This is in complete contradiction to the Immigration Act
Amendment.
Associate Professor of Law at Wits, Prof. Victoria Bronstein
commented to Tourism Update that, when viewed in context, this
appears to be some rear-guard action against the regulations.
“Although the document claims that the requirements for children
travelling to or from SA is aimed at giving effect to the
Children’s Act, 2005, the Children’s Act has nothing specific to
say about this issue. It appears that the procedures for enacting
Regulations in the Immigration Act are being circumvented by this
informal advisory. If the amended Regulations are in force, this
advisory is illegitimate.
“The current confusion about the requirements for children
entering South Africa also suggests confusion and lack of
transparency that cuts against rule of law requirements in the
Constitution,” said Bronstein.
There is more confusion over whether the new regulations gazetted
are in force or not.
Said the Professor: “The regulations appear to have been amended
with effect from December 2018 even though the heading in the
Government Gazette says Draft Regulations.”
The online legal service, Jutastat, in one version records the
amendments as having taken effect on December 1, 2018. For two
days Tourism Update has tried without success to get a spokesman
from Home Affairs to clarify if the new Amendment is in force or
not.
Home Affairs is required to consult with an Immigration Advisory
Board over regulations. There is nobody from the private tourism
and travel sector on the board to Tourism Update’s knowledge (and
the spokespeople will not return our calls). The Department has
also consistently slapped down attempts by the industry to engage
with them on regulatory change.
In the meantime, airlines around the world are compelled to
continue to deny boarding to children without birth certificates
as hopes of positioning SA as a family-friendly destination
evaporate.