The Big SA Citizenship “Lucky Draw”

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Thousands of South Africans abroad are stripped of their citizenship, while families such as the Guptas are granted citizenship under unspecified ‘extraordinary circumstances’: the application of citizenship laws is inconsistent, says De Saude Attorneys.

By Stefanie de Saude

Inconsistencies in the way in which South African citizenship rights are managed appear to be making citizenship more of a lucky draw than a legal process.

Recent media reports again highlighted controversy around the South African citizenship of the Gupta family, with calls by the likes of the South African Communist Party for their citizenship to be revoked. This controversial Indian-born family’s citizenship was awarded under unspecified ‘exceptional circumstances’, although it is widely understood from a statement made by the Minister of Home Affairs that the family did not meet the prescribed requirements.

The Minister had granted the Gupta family citizenship status in terms of Section 5(1) of the Citizenship Act, which states that the “Minister may, upon application in the prescribed manner, grant a certificate of naturalisation as a South African citizen to any foreigner who satisfies the Minister that they meet a number of requirements, including that they ‘have been ordinarily resident in South Africa for a continuous period of no less than five years’, despite the Regulations stating that this prescribed period is 10 years. However, it is understood that the Minister granted the family citizenship status by exempting them in terms of Section 5(1)(g) of the South African Citizenship Act (as amended in 2010) of this prescribed period due to ‘exceptional circumstances’.

This citizenship is in stark contrast with the situation faced by thousands of people who were born in South Africa and summarily stripped of their citizenship.

The Constitution of South Africa explicitly states in Section 20 of the Act: ‘No citizen may be deprived of citizenship’. However, despite this, we find thousands of people born in South Africa have been stripped of their citizenship after spending years in a foreign country. South Africans moving to the UK on a work visa, for example, might apply for – and be granted – British citizenship after a specified period of living and working in the UK. But on applying to renew their South African passports at the High Commission, they may be told they have lost their South African citizenship.

In September 2015 the Minister of Home Affairs confirmed that a majority of cases of lost citizenship related to South Africans taking up citizenship in Australia, Western Europe, Canada and the United States. In most instances, South African citizens who have emigrated from South Africa and have subsequently acquired a foreign nationality lost their South African status because they adopted new citizenship without the prior written consent of the Minister. Unfortunately, they did not know they were required to do this.

This unexpected loss of South African citizenship has occurred in scores of cases, with a Facebook lobby group entitled the ‘South African Dual Citizenship campaign’ supported by over 6,300 members alone.

South Africa is one of many countries that allows for dual as well as multiple nationality. Section 6(1)(a) of the
Citizenship Act states, however, that an adult South African will lose his/her South African citizenship status should he/she acquire the citizenship of another country by some formal and voluntary act (other than marriage) without the Minister’s consent. It could be argued that Section 6(1)(a) of the Citizenship Act contravenes both the South African Constitution and the United Nations Universal Declaration of Human Rights because nowhere in the Act are the words ‘voluntary and formal act’ defined, it leaves these words open for arbitrary interpretation.

An arbitrary decision is one made without regard for the facts and circumstances presented, showing a disregard for impartial procedure. The Department of Home Affairs doesn’t follow a specific protocol to determine whether such a
“voluntary and formal” act has taken place or whether it could result in a loss of citizenship.

The South African citizenship challenge extends to the children of South Africans too. While Section 3(1) (b) (i) of the Citizenship Act of 1995, as amended, states that biological descendants of South African citizens of any age living abroad are automatically conferred with citizenship, in practice, if the foreign birth is not registered with the relevant South African mission in the foreign country within 30 days of the foreign birth, the child loses its right to South African citizenship status.

These inconsistencies in the application of the laws and regulations raise serious questions around the ways in which the letter of the law is applied in South Africa.

About Stefanie De Saude: Stefanie de Saude is the Immigration and Citizenship Law Specialist of De Saude Attorneys Inc. The firm specialises in South African immigration and nationality law. For further information visit www.desaudelaw.com.