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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.
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 as it is now. (It no longer matters if a person was born in one of the old homelands. They are all part of South Africa again and the whole history of homeland independence and citizenship is wiped out.)
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:
But 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.
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, 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).
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.
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.
See CITIZENSHIP, Checklists, Not born in South Africa
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.
A person can lose South African citizenship by:
Anyone who complains that their South African citizenship has been taken away MUST be referred to a lawyer.
Dual citizenship
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
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:
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. The idea is that if someone is willing to pay more to employ a foreigner than they would to employ a South African, then that foreigner is needed.
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.
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).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 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. The fee may have gone up – but contact the local Home Affairs office 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.
This kind of permit allows a person to 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:
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.
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.
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.
The Refugees Act 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:
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/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.
A person who wants to apply to become a refugee must go to the Refugee Reception Office.
Once the person has made an application for asylum he/she will receive an asylum seeker permit. If a person has been issued with this permit, then any permit issued under the Aliens Control Act becomes null and void. The asylum permit can be extended from time to time.
The government can withdraw the asylum seeker permit 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/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/she requests this.
A refugee
Advice -givers 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. People can be assisted to collect all the right proofs and documents but 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.
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:
If NO, ask Home Affairs to give you the reasons in writing.
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