Expats loss of SA citizenship ‘unconstitutional’

By Janice Roberts

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Seeking the democratic freedom to live and work permanently in another country, a number of South African emigrants may be surprised to discover they’re no longer citizens of South Africa should they choose to acquire the citizenship of their adoptive country.

According to vague amendments to the South African Citizenship Act 88 of 1995 (the Act), it provides that unless South African expatriates specifically apply for and acquire written permission to keep their South African citizenship they will lose it by default.

The Constitution of South Africa explicitly states in Section 20 of the Act, however, that ‘No citizen may be deprived of citizenship’. However, despite, this, many South Africans are still being deprived of this basic human right,  according to Stefanie de Saude, Partner at Eisenberg de Saude, a firm of attorneys specializing in South African Immigration and Nationality law.

De Saude says the Minister should turn his attention to correcting this issue. “Failure to do so may result in more South Africans arbitrarily and unconstitutionally losing their South African citizenship.”

She points out that between 2011- 2015 roughly 2 000 South Africans citizens living abroad lost the protection of the South African government, as well as their right to vote, on acquiring the citizenship of their adoptive country without getting prior permission from the Minister of Home Affairs.

South Africa, despite a recently disallowed challenge by the ruling party the African National Congress, 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.

De Saude explains that Section 6(1)(a) of the Citizenship Act contravenes both the South African Constitution and The United Nations Universal Declaration of Human Rights and “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 Declaration of Human Rights explicitly prohibits against the arbitrary loss of citizenship, as it can lead to a gross misuse of political power.

In de Saude’s professional experience, the Department of Home Affairs interprets the words “voluntary and formal act” to mean any action where the South African applicant completed a formal application for citizenship of a foreign country.

“Citizenship by naturalisation is also deemed by the Department as a “formal and voluntary act”, while marriage, however, is exempted,” she adds.

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 have done so without the prior written consent of the Minister,” says de Saude.

“The challenge that we are seeing is that South Africans, however, continue to accept citizenship of their adoptive countries without understanding the consequences of their applications. While there are many reasons South Africans are emigrating overseas, international diversification is the ultimate insurance policy against an out of control government.”

De Saude believes that a lack of education is the primary reason why people looking to emigrate don’t think to apply to keep their South African nationality.

She says that people look to the State to make important decisions relating to the acquisition and possible loss of their South African status. “Our government not only fails to educate the citizens in respect to their citizenship, but also fails to educate public servants who are in the position to render citizenship advice to the public.”

On losing their legal status, but now citizens of a foreign country, South African expats are allotted the legal status of permanent residents. No longer eligible to vote or gain access to other State benefits, this permanent residence status however does not limit the person’s rights to working, studying or travelling in South Africa.

Ahead of stiff opposition from the ruling party, the Democratic Alliance (DA) took to the courts in 2013 to win the constitutional right of South African citizens living overseas to vote in the National Elections. The following year, the DA won 84.44% of the votes cast by South African citizens at international polling stations.

However, de Saude says that expatriates need not despair. “Learning that you’ve unexpectedly lost the citizenship of the country of your birth can be very traumatic, but expats can apply to reinstate their citizenship. Depending when they lost their status, expats can apply for either an exemption from the loss provision or resumption of their former South African citizenship,” points out de Saude.

“While the more restrictive approach is aimed at correcting the badly corrupted population register of the past,” concludes de Saude, “the new amendments to the Citizenship Act unfortunately also allow for the deprivation of nationality despite the Constitution’s prohibition on deprivation of citizenship.”


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