South African nationality law

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South African Citizenship Act
Houses of Parliament (Cape Town).jpg
Parliament of South Africa
An Act relating to South African citizenship
Enacted by Government of South Africa
Status: Current legislation

South Africa rewrote its nationality law since the end of Apartheid in 1994 and the establishment of majority rule in the country under the African National Congress. The 1995 South African Citizenship Act did away with the previous Apartheid-era 1949 and 1970 acts which had established separate bantustan citizenship to the country's African majority and inferior levels of citizenship to the country's Asian and coloured minorities.

Citizenship by birth

According to Chapter 2 of the 1995 law, anyone who was considered to be a "citizen by birth" prior to the enactment of the law or who is born in the Republic on or after the enactment of the law is a citizen by birth. Also, a person is a "citizen by birth" if they can be considered a citizen by descent and at the time of birth at least one parent was: 1) in the service of the government, 2) was employed by a person or group located in the Republic, or 3) was in the service of an international organization in which South Africa had membership.[1]

There is an exception to the birthright citizenship provision: those born to visiting foreign diplomats or their employees, or nonresident aliens are not considered to be "citizens by birth" (unless their other parent is a citizen, in which case they are a citizen by birth).

Citizenship by descent

Under the 1995 law, a person born outside South Africa to a South African parent is a South African citizen by descent upon registration of the birth under South African law. Those who did not retain their Citizenship after they applied for another Citizenship cannot transmit their previously held Citizenship.

Naturalisation

Under Section 5 of the 1995 act, Citizenship can be acquired by adults through naturalisation if the following conditions are met:

  • Valid residence permit or Certificate of Exemption;
  • One year of ordinary residence in South Africa prior to the application for naturalisation;
  • Four years of physical (actual) residence in South Africa during the eight years before the application for naturalisation, excluding the year of ordinary residence;
  • In the case of an applicant for naturalisation being married in a spousal relationship with a South African citizen, two years of permanent residence and two years of marriage/spousal relationship to the South African citizen spouse prior to the application;
  • Be of good and sound character;
  • Intend to remain resident in South Africa, work for a South African government, work in an international organisation in which South Africa is a member, or work for a person or organisation resident or established in South Africa;
  • Be able to communicate in any one of South Africa's official languages satisfactorily;
  • Have adequate knowledge of the duties and responsibilities of a South African citizen.

Naturalisation of an adult also confers South African citizenship upon that adult's minor children.

Loss of citizenship by naturalised South Africans

Naturalised South Africans who left South Africa before 6 October 1988 and did not obtain a 'Letter of Exemption' from the South African authorities may have lost South African citizenship after seven years absence.

Visa free travel

Visa requirements for South African citizens
  South Africa
  Visa-free
  Visa on arrival
  Electronic visa available
  Pre-approved visa pick up on arrival
  Visa required

Visa requirements for South African citizens are administrative entry restrictions by the authorities of other states placed on citizens of South Africa. In 2017, South African citizens had visa-free or visa on arrival access to 98 countries and territories, ranking the South African passport 55th in the world according to the Visa Restrictions Index.

Dual nationality

Prior to 2004, South Africa in principle did not recognise the multiple citizenship of its nationals unless the citizen applied for an exemption or permission letter under a 1995 law permitting South African citizens to travel using foreign passports.

Since 2004, South African dual nationals may travel without hindrance as long as they enter and leave South Africa on their South African passports. Dual nationals may petition for temporary, emergency or "permanent" South African passports for this purpose.

However, a South African citizen who by a formal and voluntary act acquires the citizenship of another country, automatically loses his or her South African citizenship unless they apply for, and receive permission to retain their South African citizenship before acquiring the citizenship of another country[1]. A naturalised citizen however cannot apply for such a retention. There is not a specific requirement to do so if residing in South Africa or if the claim is inevitable such as a dual Zimbabwean-South Africa possessing the Right of Abode in the UK then registering as a British Citizen. If a South African Citizen wishes to restore a previously lost Citizenship (usually by birth) due to acquiring Citizenship of another country, for instance, Citizenship of one of the territories that the Soviet Union controlled, then there is no specific requirement to apply for retention of South African Citizenship. A South African citizen cannot possess the Right of Abode in the United Kingdom as they were not Commonwealth Citizens in 1983 unless they are a Commonwealth Citizen of another country, however if due to registration, British Citizenship and the Right of Abode is given simultaneously.

South African citizens under the age of eighteen (18) years are exempt and do not require permission as long as they acquire the foreign citizenship before their eighteen (18th) birthday by their parents right. They automatically retain their South African citizenship for life unless; once they have reached the age of 18 and they then wish to acquire a further foreign citizenship. They will then have to apply for prior permission to retain their South African citizenship – failing to do so, they will automatically lose their South African citizenship.[2]

These laws are not heavily guarded thus entering South Africa with a South African Passport will immediately suggest the holder's Citizenship.

Entering South Africa on a foreign or another Commonwealth Passport is illegal when in the possession of South African Citizenship. If the holder is assumed to have renounced their South African Citizenship because there is no evidence to suggest that they are presently 'once were' South African, then they may pass under the assumption of another/ that citizen but when it is seems that they are a South African Citizen, then may they face interrogation when entering or leaving South Africa when entering on another passport. An example of a person still holding South African Citizenship to the officer would be: a child (under 18) seeking entry with a British Citizen Passport describing them as below 18, having been born in Republic of South Africa and the child's parents passports also stating the place of birth as South Africa. This provision of the Citizenship Act (section 26(B)) only applies to adults ("major citizens").[2]

Those who previously held South African Citizenship (other than by naturalization) are always entitled to permanent residence in South Africa and may apply to resume their South African citizenship after indefinitely returning so long there is sufficient prove of previously held South African Citizenship. The Permanent Residence holder will then be required to reside in South Africa until (they) become eligible to restore or naturalize as a South African Citizen. The application for resumption of South African citizenship requires proof of residence in South Africa for one year immediately prior to the application. Municipal rates and other utility bills are usually accepted.[3]

Those who naturalized after obtaining Permanent Residence (first South African Citizenship) cannot apply for Permanent Residence then Citizenship through their claim to previously being a South African Citizen as previously stated unless (they) re-reside in South Africa on a pathway to possible Permanent Residence with an eligible Visa again. This is not applicable to those who were born in South Africa or the UK and former Colonies or obtained their Citizenship by Descent and have since lost it.

Many South Africans have claims to another citizenship (see: Demographics of South Africa).

British nationality

The information below is informative and should be viewed as a summary of the influence and History of the presence of the British Nationality Law in South Africa as well as the present effects and entitlements:

  • Prior to 1 January 1949, present day South African citizens of the former Union of South Africa were regarded as British subjects under British law, irrespective if they were born in South Africa or any other country in the British Empire such as the *UK itself. British Nationality Law expanded after this time of which many former Dominions developed their own Nationality Acts. See British nationality law.
  • Between 1 January 1949 and 1 September 1949, South Africans remained British subjects without citizenship unless they had already acquired citizenship of the UK & Colonies or of another British Commonwealth country and continued to possess a British Passport for the Union of South Africa with the status “British Subject” endorsed in it. Before this period, many colonies had already gained self-governance and became Dominions of which all developed their own Nationality Acts which was enforced (such as Canada after this period). The Crown's Dominions (e.g.: Canada, Australia, New Zealand, South Africa, and so forth...) operated their own Immigration laws before and after 1949 even although Nationality Laws were not invented before 1949 which meant that *certain British Subjects from other parts of the British Empire required permission to land in the Crown Dominion's. All British Subjects including those from the Crown's Dominion could move freely between the Colonoies and United Kingdom until 1961. A Dominion is essentially what is now known as a Commonwealth Realm where Her Majesty the Queen, Elizabeth II is the constitutional Monarch, however this differs from absolute Monarchy. Dominions operated on a high level of self-goverence although were still controlled by the Crown in certain respects.
  • [Subject to interpretation].

Citizenship of the UK and its colonies

  • On 2 September 1949, most British subjects without UK & Colonies Citizenship from South Africa acquired a South African Citizenship if they had a connection (e.g. Birth) whilst simultaneously retaining the status of a British Subject in the UK and being a Citizen of the self-governing South Africa part of the former UK Commonwealth of Nations. The status acquired was British Subjects: Citizen of the (Dominion)* Union of South Africa, a U.K. Commonwealth Nation.
  • Those who did not become South African generally became (citizens) of the UK & Colonies provided that they had no connections with any other Commonwealth country or Ireland (Eire), but this was rare as citizenship was enforced upon the newly independent Commonwealth Nation for the British Subjects. Such persons would only have acquired British citizenship in 1983 if they had a right of abode in the UK at the time. Otherwise they would have become British Overseas citizens (formerly known as British Dependent Overseas Territories). These people acquired British Citizenship as a result of their British Subject status (non-citizen) with the Right of Abode stated in their UK and Colonies Passport; prior to the revolution of the 1980s nationality act.
  • Those of an ethnic Indian or Pakistani background who were British subjects before 1949, but did not acquire South African citizenship in 1949, may have remained British subjects without citizenship. These individuals can possibly Register as British Citizens provided they have no other nationality and have resided in South Africa with their British Subject status since the period that present day South Africans acquired Citizenship. See Indian nationality law
  • British Overseas citizens and British subjects who have no other nationality, and have not lost or renounced another nationality since 4 July 2002, may register as British citizens under s4B of the British Nationality Act 1981 without requiring UK residence under certain conditions of the Act. This facility has been available since 30 April 2003 due to the statuses not having present day value and in particular British Subjects were there is no country of Right to Settle/ Permanent Residence. Those who have immigrated to the UK may have additional options for acquiring British citizenship such as naturalization through marriage or registration as a British Citizen without meeting the residence requirement.

Citizenship between 1949 and 1961

Between 1949 and 1961, all South African citizens remained British subjects by virtue of their South African citizenship whilst South Africa remained a self-governing Commonwealth Nation of the UK which was known as a Dominion, similarly known today as a Commonwealth Citizen under the UK Nationality Law with or without the Right of Abode to the UK. During this period present day South Africans were regarded as: [British Subject: a Citizen of the Union of South Africa, a U.K. Commonwealth Nation] (either with or without the Right of Abode in the United Kingdom). The format was similar to a CUKC passport ans beaded the words “British Passport” at the top.

This ended in 1961 when South Africa left the Commonwealth and formerly abandoned all of its connections, some UK Dominions still recognized South Africa as part of the UK. By the time South Africa returned to the Commonwealth in 1994, the phrase British subject had been replaced by Commonwealth citizen. Today South Africa is still part of the Commonwealth of Nations but since it is a Republic, Her Majesty, Queen Elizabeth II is not the Monarch as she is for Commonwealth Realms (16) and was for South Africa. The title after 1961 was a Republic of South Africa Citizen.

The full title of a South African Citizen presently is: Republic of South African Citizen, a Commonwealth Citizen (formerly British Subject and either with or without the Right of Abode in the United Kingdom).

Right of abode in the United Kingdom

Right of Abode is the authority for its holder to remain in the UK indefinitely without immigration control but subject to satisfying certain requirements. Holders of Right of Abode must have a Certificate of Entitlement as proof that their right exists or describing them as British Subjects with the Right of Abode or be a British Citizen (ROE is standard with British Citizenship). Those who hold the ROE may be a Commonwealth Citizen (excluding UK) or a UK National such as a British Subject or British Overseas Citizen. Unlike British Citizenship which contains the Right of Abode, the Right of Abode as another Commonwealth Citizen can be revoked in cases such as criminal conduct or applications made in fraud.

As South Africa was a foreign country (under United Kingdom law) between 1 January 1973, the date the Immigration Act 1971 came into force in the UK, and 1 January 1983 (when the British Nationality Act 1981 came into force) South Africans cannot have right of abode in the UK unless they also hold citizenship of another Commonwealth country (such as Australia or Zimbabwe which was still a Commonwealth Nation under U.K. law) or of the UK itself, in the instance of being another Commonwealth Citizen the holders would most likely have been born in that Commonwealth Country or through marriage. A Commonwealth country refers to any country within the Commonwealth of Nations, for instance, Australia, New Zealand or Canada but since Elizabeth II is not the head of state in South Africa (Queen), as South Africa is a Republic, the Queen is the Constitutional Monarch for systems with the Monarchy which is the case of 16 Commonwealth nations (realms).

This particularly affects South Africans born before 1983 with a UK-born mother, who would otherwise usually have had the right of abode in the UK. Many South Africans possessing restored Zimbabwean Citizenship have the Right of Abode if their mother was born in the UK even though Zimbabwe is not technically part of the Commonwealth under their own constitution.

However, the changes to British nationality law on 30 April 2003 have since allowed those born in South Africa between 8 February 1961 and 31 December 1982 to a UK-born or naturalized or registered mother to apply for registration as a British citizen by descent which is a downgraded version of British Citizenship by Birth or Naturalization and with this comes a right of abode in the UK. This also enables Citizenshio to be passed onto the Grandchildren. This concession is not specific to South African citizens as this applies to all countries including non-Commonwealth realms and members such as the United States (even though apart from some states/ territories being considered part of the Commonwealth such as Peurto Rico). It remains very difficult to obtain many documents for registration as nationality was not considered something of great significance prior to 1983 nor was this communicated of by the U.K. Government frequently unless enquired, travel was limited from South Africa due to strict laws imposed by the Apartheid regime, thus many individuals misplaced their documents which could have very well helped many apply for Registration as a British Citizen by Descent or never requested them. In the instance for proof of British Citizenship/ possession of the Right of Abode, confirmation of British Citizenship can be obtained for the living or deceased who were born in the United Kingdom.

For those concerned, it is important to note that entering the UK or applying for a UK Visa is particularly difficult as South Africa was not always part of the Commonwealth. The individuals affected are those born to British mothers between 1961 and 1982. The rule of who can possess the Right of Abode is very controversial but in most instances, those who apply for a Certificate of Entitlement generally have their applications refused due to not being a Commonwealth Citizens for their entirety which then leaves them in a difficult situation whereby their claim to register as a British Citizen by Descent or obtain a Certificate of Entitlement is to no avail and their UK Standard Visa (C) is usually refused due to the officer not being aware of these restrictions when a British-Born mother is mentioned in applications.

Right of Abode is possible to obtain by double descent in some instances where either the parent has the Right of Abode or is some form of a British National or the grandparent's child/ren registered within a specific timeframe or there is substantial proof the Grandparent is/ was a British Citizen and their child was either born in a former Colony or did not possess a passport, this will ultimately enable the grandchild to apply for British Citizenship or obtain the Right of Abode but it is unclear whether the parent would have to become British or not / obtain ROE during a certain time which means British Citizenship by Double Descent which is the lowest grade of British Citizenship. Since claims by double descent are very difficult, the UK Ancestry Visa was introduced; this also enables Citizenship otherwise than by descent to be transmitted by descent upon a successful Naturalization of British Citizenship application after meeting the basic residence requirement whereas Citizenship by Double Descent can only be transmitted in extremely limited circumstances. Registering as a British Citizen can sometimes assist in the child becoming British as Regustration generally refers to (otherwise than by descent).

As for people born on or after 1 January 1983, they can only possess the Right of Abode to the United Kingdom if they hold British Citizenship.

As South Africa rejoined the Commonwealth, those born to British mothers fully possess the Right of Abode if they were born during or after 1994 (period of rejoining) but only as British Citizens.

Commonwealth citizenship

Following South Africa's return to the Commonwealth in 1994, South Africans are treated as Commonwealth citizens in the United Kingdom (formerly British Subjects). This includes the following benefits:

  • eligibility for the UK Working Holiday Visa scheme (no longer available since November 2008 (non-specific))[4]
  • eligibility for the UK Ancestry Visa (for those with a UK-born grandparent). This is five year's entry clearance which enables the holder to eventually apply for Indefinite Leave to Remain/ Enter (Permanent Residence) after five years of stay then eventually British Citizenship after a waiting period of one-year. Children of the qualifier are encouraged to join the UK Ancestry Visa as a dependent prior to their eighteenth otherwise they will not be able to join the qualifier in the UK and will therefore be required to wait until their parent/s become a British Citizen whereby the child will then become a British Citizenship by Descent unless they decide to join their parent's whilst the parent is a Permanent Resident on an unlimited-time Family Visa, the child will automatically become a British Citizen once their parent does. There is no age restrictions for spouses. It is important to note that unlike other UK Visas, the Ancestry Visa cannot be revoked as it is right. Once the right is established, it is indefinite but the Visa will always need to be valid in order to use that right for entry/ re-entry into the United Kingdom of Great Britain and Northern Ireland. Thus, if a Five Year Entry Clearance/ Visa is approved, it will be the qualifier's responsibility to ensure that the visa is valid throughout the length (they) anticipate to remain in the UK and Crown Dependencies. Once the initial Visa expires, it can be extended whilst in the UK or a new Visa can be applied for outside the UK but the right would then need to be re-established (not applicable for extensions of visas).
  • the right, if resident in the UK, to vote and hold public office in the UK
  • the right to possess a British Emergency passport as a South African Citizen (Commonwealth) which is valid for one-year when there is no South African consulate or other Commonwealth consulate available.

There are no specific concessions in terms of eligibility for British citizenship, and South Africans must meet the same rules for registration or naturalisation as citizens of any other country.

See also

References

  1. ^ "South African Citizenship Act" (PDF). South African Government. 
  2. ^ http://citizenshiprightsafrica.org/wp-content/uploads/2016/05/South-Africa-Citizenship-Act-1995-as-amended-to-2010.pdf
  3. ^ http://www.passport2000.com/files/bi-175.pdf
  4. ^ "UK Working Holidays – A Thing of the Past for SA". Web.archive.org. 20 November 2008. Archived from the original on 15 February 2009. Retrieved 2012-06-13. 

External links

  • South African Department of Home Affairs
  • SA Citizenship Act no 88 1995
  • SA Citizenship Amendment Act 17 2004
  • ^ South African Government Services: Application for dual nationality
  • [3]NO. 88 OF 1995 – SOUTH AFRICAN CITIZENSHIP ACT, 1995
  • South African Department of Home Affairs: citizenship forms
  • Dept. of Home Affairs: How to Apply for SA citizenship
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