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Introduction
South Africa's citizenship law
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To be a citizen of a country means that you belong to that country and have the right to live there. A country must protect its citizens if they need help when they are travelling in other countries. Citizenship is a very important thing and people value it highly.
Children's Act No.38 of 2008
Immigration Act No. 13 of 2002
Refugees Act No 130 of 1998
South African Citizenship Act No. 88 of 1995,
South African Citizenship Amendment Act No.17 of 2010
Refugees Amendment Bill, 2010
There are a number of laws due for reform and undergoing reform, which may change the requirements described in this chapter.
In South Africa our Bill of Rights gives many rights to 'everyone', but keeps certain rights for citizens only. If you are a citizen of South Africa you have the right to:
None of these rights apply to people who are not South African citizens, even if they have lived legally in this country for very many years.
The government can pass laws which give those rights to non-citizens. For example, some people who were not citizens were allowed to vote in the 1994 election. But it is not a right which is protected in the constitution for non-citizens, so government can also pass a law which takes the vote away from them.
People who are not citizens must have permission to enter South Africa. If they want to stay, they must get a permit to live here.
Problems are usually experienced by people who are having difficulties in getting a first Identity Document (ID). Very often it is because their citizenship is being questioned by the Department of Home Affairs. ID books are only issued to citizens and to those non-citizens who have been given a permit to stay permanently in South Africa.
If the person does not have a birth certificate or good proof of being born in South Africa, they will be asked to bring all sorts of information about their parents, their schooling and so on.
WARNING: Anyone giving advice must be very careful when dealing with citizenship problems.
IF A MISTAKE IS MADE IT MAY MEAN THAT A CLIENT'S CASE IS RUINED AND CANNOT BE PUT RIGHT.
Advice givers can assist a person to collect all the right proofs and documents but should then refer the case to a Law Clinic, or public interest law firm such as the Legal Resources Centre, before doing anything else.
There are three ways in which a person can be a citizen:
Citizenship by birth and descent are legal rights for anyone who can prove the facts of birth and parentage.
Citizenship by naturalisation is not a legal right. It can be granted or refused by the Minister of Home Affairs.
A person has to prove the place where he or she was born and the date of birth.
The place must be a place within South Africa.
Proving a birth can be very difficult if there is no birth certificate, or if the person was not born in a hospital or clinic. We have to think hard with the client about what kind of proof might be available.
Documents which can help are:
Affidavits can be made by people who helped the mother at the birth or who were neighbours at the time of the birth. However the Department of Home Affairs is not easily satisfied if the only proof is affidavits so try to find some other kind of documents which can be attached to the affidavits.
One parent is a South African and the other parent is a foreign national
In terms of the South African Citizenship Act (No. 88 of 1995) a child born in South Africa to parents where one was either a South African citizen or a South African permanent residence holder at the time of the child's birth, and the other parent is a foreign national, will be a South African citizen by birth in the case of births from 6th October 1995 when the Act came into operation. The position before that was governed by the South African Citizenship Act of 1949 which contained a wide range of different requirements over the years. To determine a person's claim to South African Citizenship in respect of births in that era, a person usually needs to complete a BI-529 (Determination of Citizenship Status).
Both parents are foreign nationals
A child who is born in South Africa, from parents who are foreign nationals, will get the citizenship of their parents. However, at the age of 18 a child who is born in South Africa, where both parents are foreign nationals, can apply for citizenship by birth.
Adopted Child
Foreign children who are born in South Africa and legally adopted by a South African citizen are governed in terms of the Children's Act of 38 of 2005 and their birth is registered in South Africa. This means they will have citizenship of South Africa by birth.
CITIZENSHIP, Checklists, citizenship by birth
This makes provision for South African citizenship for children born outside South Africa.
If one of the child's parents is a South African citizen the child has a right to South African citizenship IF that parent registers the birth at the nearest South African embassy or consulate, or sends the proof of the birth to the Department of Home Affairs in Pretoria.
The Children's Act makes provision for people to adopt, and children who are legally adopted by a South African citizen, will qualify for citizenship through descent.
REMEMBER that citizenship by birth or descent can also be given to children who are legally adopted. They become the 'own' child of the new parents and the rules about their citizenship are the same as for children born to their natural parents. BUT the adoption must be a legal one and agreed to by a court. If children are born to foreign nationals and are legally adopted by a South African citizen the child would be granted citizenship.
See CITIZENSHIP, Checklists, Not born in South Africa
Naturalisation is the granting of citizenship to someone who has come to South Africa from abroad and stayed in this county for some time.
If a person is a citizen of another country but wants South African citizenship she or he can apply to the Minister of Home Affairs for Citizenship. According to the Eighth Amendment Act of the Regulations in terms of the South African Citizenship Act (1995) that came into operation on 1 April 2003, a fee may be charged for the duplication of the certificate.
These are the conditions that the person must fulfil when applying for citizenship:
BUT this application for citizenship can be refused by the Minister even if the person seems to fulfil all the conditions. It is regarded as a privilege not a right.
South African citizenship cannot be taken away from anyone unless that person also has the citizenship of another country. If that person acquires citizenship of another country, he or she will lose their South African citizenship unless they apply to retain it before acquiring foreign citizenship and paying the required fee.
A person can lose South African citizenship by:
OR
Anyone who complains that their South African citizenship has been taken away MUST be referred to a lawyer.
A South African citizen cannot have dual citizenship, in other words, be a citizen of two countries at the same time. The original citizenship will automatically be cancelled if a person is granted citizenship of another country. However, a South African citizen can apply for the retention of South African citizenship BEFORE acquiring a foreign citizenship, against payment of a prescribed fee.
According to the South African Citizenship Amendment Act (No 17 of 2004) a citizen is guilty of an offence and is liable to a fine or imprisonment IF he/she:
According to the Eighth Amendment Act of the Regulations in terms of the South African Citizenship Act, the following fees are applicable:
In terms of Regulation 23 of the Immigration Act a relative means "biological or judicially adopted children or adoptive parents and step parents". A relative's permit is a temporary residence permit which may be issued to a foreigner who is a member of the immediate family of a citizen or a permanent resident. The following proof is required:
A person can apply for permanent residence through a first step of kinship, for instance where the applicant is the father of a child born in South Africa and whose mother is a South African citizen. This application for permanent residence can also be made through the holder of a permanent resident's permit who is in the first step of kinship. BUT a foreigner cannot apply for permanent residence through a holder who obtained his or her permanent residence status through a first step of kinship.
See Checklist: Requirements: Application for permanent residency based on the first step of kinship.
Examples
1. Applying for citizenship from a permanent residence permit
A foreign national came into the Republic with an asylum seeking permit, and applied for status as a refugee which was granted for two years. After two years she applied for a permanent residence permit. If she stays for at least five years further, she can then apply for naturalisation.
2. Applying for permanent residence through a Relative's Permit
If a foreigner has married a South African citizen or permanent resident they can apply for a Relative's Permit from their country of origin. Once in South Africa, they can apply to become a permanent resident. If the person is indeed a member of the immediate family, and can satisfy the prescribed conditions, then the person can apply for permanent residency on the basis of first step of kinship.
3. Applying for permanent residence status through a child born in South Africa (first step of kinship).
A person who had applied for an Asylum Seeker's Permit, and whose permit is going to expire, wants to extend the permit. He has a relationship with a South African woman, and is the father of two children with her. The two children will be South African birth due to their mother's citizenship. He wants to apply for his Asylum Seeker's Permit to be renewed. The person is advised to apply directly for permanent residence status based on the first step of kinship through his two children. If his name is on the birth certificate then he could present the birth certificate as proof of kinship. However if the biological father's name is not disclosed, then he would need to make a late application for an unabridged certificate.
Note: In the case of a couple who are not married, the particulars of the father will only be evident on the unabridged birth certificate if the father's name was put down at the time of registration of the birth. If it is not recorded then a new application would need to be made to amend the birth certificate.
There are some people who come here for purposes of work, and they are called immigrants and migrants. There are others who are here to seek asylum and refugee status. This will be dealt with in the section, Refugees.
The Immigration Act (No 13 of 2002) deals with immigration and migration. It repeals the Aliens Control Act of 1991 as well as the Aliens Control Amendment Act (No76 of 1995) and regulates the admission of people to South Africa and their right to live and work here. The Act uses a licensing fee to manage the process of allowing foreigners to work and live in South Africa. It also regulates the movement of migrant workers in certain sectors such as mineworking and agricultural work.
Remember that there is no 'right' for a non-South African to be given a permit to come to South Africa, or to live and work here. It is always a permission which may be granted or refused. People who apply for the permission have the right to administrative justice. This means they have the right to be given reasons, in writing, why permission was not given.
THE SOUTH AFRICAN CONSTITUTION AND BILL OF RIGHTS, Section 33: Just Administrative Action
If a person is granted permission to live in South Africa on a permanent basis, they are entitled to most of the rights which apply to 'everyone' in the Bill of Rights.
If they are given permission to remain in South Africa on a temporary basis, such as a work permit, they are protected by some but not all of the rights. It will be many years before the courts have made enough rulings in individual cases to give us certainty as to what rights protect such temporary residents.
The Immigration Act says that every person who is not a South African citizen and who wants to come to South Africa must come in through a legal 'port of entry.' That means a border crossing by road or railway, or an airport, or a sea port where there is proper border control with immigration officials and police persons as well as customs officials. This is applicable for entering and departing the Republic. People who enter otherwise are illegally present in the country and if they are found they will be deported.
In order to come legally to South Africa a person must have a valid passport from her/his country or a certificate applied for and issued by the Department. Such a person must also have some kind of permit to enter South Africa. If it is not the case, his/her passport must be valid for not less than 30 days after expiry of intended stay. There are two kinds of permits: permanent residence/immigration permits and temporary residence permits (legislation makes provision for no less than 13 types of temporary residence permits).
This permit allows a person to live permanently in South Africa, while remaining a citizen of another country. According to the Immigration Amendment Act this permit can be issued on condition that the holder is not prohibited (because of disease, outstanding conviction, previous deportation, association with terrorism or possession of fraudulent permits/passport) and not undesirable (declared incompetent, unrehabilitated insolvent, fugitive from justice or previous criminal convictions).In some instances such as in the instance of a scarce skill, a person who wants such a permit should apply before coming to South Africa. Sometimes a person who is here on a temporary work permit will be allowed to apply for an immigration permit while she or he is already here. The other permits that people are on they are on must still be valid.
There are four ways of obtaining a permanent residence permit. If the person:
The application forms are available at any South African embassy or consulate, or direct from the Department of Home Affairs in Pretoria.
The fee for submitting an application for a Permanent Residence permit is R1520. Contact the local Department of Home Affairs office to confirm that this fee is still correct or for more information. When the application is received by Home Affairs, it is sent to a regional committee of the Immigrants Selection Board in the province where the applicant wishes to live. The members of these regional committees and of the Board as a whole are not officials of any government department, but are independent individuals. The committee will investigate the application.
The applicant must be:
The committee will give special consideration to the following applications, but there is still no 'right' to be granted the permit:
The Constitutional Court has said South Africans have a right to live in the country that they were born in with the partner of their choice. This means the government cannot refuse to give immigration permits to foreign-born spouses (husbands or wives) of South African citizens.
The Court has also said that the Department of Home Affairs may not refuse to issue work permits to foreign-born spouses of South African citizens unless they have a very good reason. Therefore - spouses and dependants of South African citizens do not pay for an immigration application (Permanent Residence).
Life partners in common law or gay relationships should receive the same treatment as married applicants. Because they don't have marriage certificates, they have to supply affidavits stating they are life partners with their applications.
If the committee grants the permit, it may make it a condition that the person works and lives in the province concerned for at least 12 months.
If the permit is refused, the applicant may ask the Central Board to review the provincial committee's decision but it does not have to. Legal advice is definitely necessary to see if there can be any court challenge to the decision.
Withdrawal of a permanent residence permit can take place in circumstances including the following:
A temporary residence permit allows a foreigner who is not the holder of a permanent resident permit to enter and stay in South Africa for a limited time.
A person who wants such a permit should apply before coming to South Africa. Application forms are available at any South African embassy or consulate, or direct from the Department of Home Affairs in Pretoria. An application fee will be charged. If the permit is refused there is no review procedure.
There are many different kinds of temporary permits which can be applied for. These are described in the Immigration Act, Sections 11 to 23.
This is the easiest permit to get. We want and need tourists because it is a growing sector of our economy so Home Affairs issues these permits (visas) readily. These visitor's permits cannot be changed to any other kind of temporary permit. South Africa has visa agreements with certain countries, like the United Kingdom or the United States, which allow residents of these countries to just arrive at South Africa borders and ask for a visitor's permit. The visitor's permit is granted for a period up to 3 months. It may be issued for a longer period for visitors who have financial security and are engaged in specific activities such as research or charitable work.
This is issued to an ambassador, minister of a foreign state, career diplomat, or consular officer.
This is for a foreigner wishing to study for a period longer than 3 months, and who can satisfy prescribed conditions.
This is issued to a foreigner conducting activities in South Africa in terms of an international agreement to which South Africa is a party.
This is issued to a foreigner who is purchasing, investing in, or establishing a business in South Africa. It can also be granted to members of such foreigner's immediate family. Prescribed financial contributions apply.
This is issued to a foreigner who is a member of a crew of a ship. The crew member has to remain in a predetermined area in terms of this permit.
This is issued to a foreigner who intends to receive treatment in South Africa for longer than three months.
This is issued to the immediate family of a citizen or resident,
This is very difficult to get unless the employer can prove that every effort has been made to find a South African to fill the position.
- Quota Work Permit - The foreigner must fall within a specific professional category; these are proclaimed by the Minister annually.
- General Work Permit - this is only valid for the duration of the contract of employment, and certification of continued employment needs to be submitted annually.
- Exceptional Skills Permit - Foreign National applicant skills and qualifications which are deemed beneficial to SA development. Valid for 3 years only. This can include the family of the person holding exceptional skills.
- Intra-company transfer work permit may be issued to a foreigner required to work in the Republic for a period no longer than 2 years. They are restricted to work for the particular company referred to in the permit.
Foreign spouses of South African citizens are no longer charged a fee for a work permit and it may be applied for in South Africa. The work permit is issued on proof of the existence of the marriage and a work offer. The applicant should have applied for Permanent Residence. This service is currently free of charge.
Life partners in common law or gay relationships should receive the same treatment as married applicants. Because they don't have marriage certificates, they have to supply affidavits stating they are life partners with their applications.
This is issued to a foreigner who wishes to retire in the Republic, provided they have proof of a pension from their country of origin or a minimum prescribed net worth. This is issued for a four year period and can be renewed.
This is only issued to foreigners not older than 25 years of age who wish to participate in cultural, economic or social exchange programmes)
The Refugees Act (No 130 of 1998) says that South Africa cannot refuse to allow a foreigner into the country or force them to return to their own country if in their own country:
Some of the people from other countries who are among us are 'asylum seekers' - they are people who have fled from their own countries because of political conflict or war. They are asking for refugee status in South Africa so that they can have some protection, while they wait for the time when it is safe for them to go home again. The Refugees Act of 1998 and regulations apply to refugees living in South Africa.
A refugee is a person from another country who has fled to South Africa to escape war or persecution, and who has been granted refugee status under the Refugee Act, No. 130 of 1998.
An asylum seeker is a person from another country who has fled to South Africa to escape war or extreme violence, and who is formally seeking refugee status, but has not yet been granted it.
An undocumented foreign national is a person from another country who has entered South Afirca and who is in the country illegally, because they have not engaged with any formal processes to legalise their residence - or they have not engaged successfully. The person is undocumented in South Africa, however they may have documentation in their country of origin.
If a person or their dependants falls into one of these categories then they could be regarded as refugees. But, a person does not qualify to be a refugee if he or she has committed a serious non-political crime. People who are fleeing from economic hardship (no employment) or natural disasters (like floods or earthquakes) are not recognised as refugees in terms of the Refugees Act.
At the place where the person seeking asylum enters South Africa, he or she will be granted a transit permit which is valid for 14 days, in terms of the Immigration Act. A person who wants to apply for asylum must go to the Refugee Reception Office during this time to submit an Eligibility determination form (form BI-1590). You have the right to be assisted in English when making an application. Once the person has made an application for asylum he or she will receive an Asylum Seeker Permit. This is often referred to as a Section 22 permit. If a person has been issued with this permit, then any other permit issued under the Immigration Act becomes null and void. The Asylum Seeker Permit can be extended from time to time, and will be valid for up to 6 months and then can be renewed.
The government can withdraw the asylum seeker permit (Section 22) if:
If a permit has been withdrawn the person seeking asylum can be arrested and detained until their application for asylum has been finalised.
When the government is deciding on an application for asylum they must explain the procedures to the person and tell them what their rights and duties are.
The Refugees Act says asylum seekers are not allowed to work or study. The South African Human Rights Commission challenged the Refugees Act which states that asylum seekers are not allowed to work or study. As a result the Department has instructed all Refugee Reception Offices to endorse the Section 22 permits allowing asylum seekers to work or study.
See Resources for names of organisations that will assist with refugee and asylum problems.
If an application for asylum is rejected the person must be given the reasons in writing within 5 days of the refusal. If asylum is refused on grounds that the application is 'manifestly unfounded, fraudulent or abusive', the Standing Committee for Refugees will review the decision to refuse asylum. Such a case does not go to the Appeal Board.
An asylum seeker can lodge an appeal with the Appeal Board once he or she has been told that the application has been refused. The applicant must be allowed to bring a legal representative to the Appeal Board hearing if he or she requests this.
An asylum seeker:
The applicant will be interviewed for their Refugee Status Application. They may bring witnesses, or a person who is able to speak English to assist them to tell their story. They must also bring supporting documents such as:
They will be notified about the outcome of their application within 180 days.
The person will be given 30 days to submit an appeal to the Refugee Reception Office or to leave the country. In the appeal the person must state reasons why he or she should not go back to their home country.
A person can appeal on the basis that:
A refugee
As an advice -giver you must be very careful when dealing with citizenship problems. If a mistake is made it may mean that a client's case is ruined and cannot be put right. You can help people to collect all the right proofs and documents but you should then refer the case to a Law Clinic, or public interest law firm. Remember to check a person's story as far as possible, in case they are using false documents to get citizenship illegally.
Ask the person the following questions:
If NO, ask Home Affairs to give you the reasons in writing.
If NO: address the problem that Home Affairs has identified, probably a technical problem with the birth certificate or ID application process.
If YES:
You have a right to South African citizenship, no matter what your parents' status was. BUT the proof of the place and date of your birth must be very good. Affidavits from other people are not usually considered to be sufficient.
You will also have to prove your father's position at the time of your birth.
You will need to try to find proofs of his status at the time you were born. These might be:
You have a right to South African citizenship, no matter what your parents' status was. BUT the proof of the place and date of your birth must be very good. Affidavits from other people are not usually considered to be sufficient.
You will also have to prove your father's position at the time of your birth.
You will need to try to find proofs of his status at the time you were born. These might be:
If NO, ask Home Affairs to give you the reasons in writing.
The main applicant is the relative of a citizen or resident within the first step of kinship
This service applies to a prospective permanent resident who wishes to apply for a permanent residence permit on the basis of being a family member of a South African citizen or permanent resident within the first step of Kinship. For the purpose of permanent residence, family members within the first step of kinship are prescribed as biological and judicially adopted children or adoptive parents and step-parents.
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