Chris Fick & Associates

The Constitutional Court recently ruled that children born in South Africa to foreign parents qualify for South African citizenship in terms of Section 2 of the South African Citizenship Act. That is, if you were born in South Africa to foreign parents who have not been admitted as permanent residents, you qualify to apply for South African citizenship upon becoming a major if your birth was registered and if you have lived here all your life, irrespective of the date of your birth and you have not accepted the nationality of another country. The judgment also reduced the term for applying for citizenship by holders of permanent residence from 5 years to 10 years by declaring Regulation 3(2)(a) of the Citizenship Act Regulations unconstitutional.

This judgment settled a long-standing dispute between a Congolese couple, their minor child and the Department of Home Affairs. The Constitutional court judgment was an appeal from the Western Cape High Court Decision. The couple who were refugees renounced their Congolese citizenship in line with the advice they received from the Department of Home Affairs to qualify for South African citizenship. Unfortunately, their applications for South African citizenship were rejected on the basis that they did not comply with Regulation 3(2)(a) of the Citizenship Act Regulations.

Regulation 3(2)(a) sets a minimum period of 10 years ordinary residence prior to applying for citizenship whereas Section 5(1)(c) of the Act sets a minimum period of 5 years ordinary residence. The result was that the couple and their third child became Stateless. Being frustrated by their effort to sort out the issue with the Department of Home Affairs, the couple approached the High Court for a relief. The couple sought an order declaring Regulation 3(2)(a) invalid and unconstitutional. The Department of Home Affairs could not justify the difference in the minimum period of 5 years imposed in Section 5(1) of the Act and the 10 years imposed in Regulations 3(2)(a).  Regarding section 5(1), the High Court accepted that the section does create a minimum period, but it does not allow for an extension of that period nor does it create a maximum period. The High Court in Cape Town thus concluded that the Regulation could not amend the legislation and the 10 year period in Regulation 3(2)(a) was a patent error.

The court further held that the Department’s argument that the child could apply for citizenship when he reached the age of 18 years was not in accordance with the right of the child to a nationality as set out in section 28(1)(a) of the Constitution. Furthermore, the child ought to be placed in a position where he too can qualify for South African citizenship. Consequently, the High Court declared the reference to “10 years” in Regulation 3(2)(a) to have been ultra vires (beyond the legal power or authority) of section 5(1) of the Act and irrational, vague and inconsistent with the Constitution and therefore invalid.

The High Court suspended the declaration of invalidity pending the confirmation of its order by the Constitutional Court. However, the High Court refused to grant the substitution order on the couple’s application for citizenship stating that it was not in as good a position as the administrator at Home Affairs to make that decision. The couple therefore approached the Constitutional Court to confirm the declaration of constitutional invalidity. In the alternative, they applied for leave to appeal the suspension order directly to the Constitutional Court.

The Constitutional Court Stated that the rights of a child are adversely affected as the High Court declined to consider the child’s application for citizenship and held that his application was dependent on the outcome of his parents’ permanent residence applications. The Court further stated that any further delay in finalising the matter will prejudice the applicants who remain stateless. The Constitutional Court Held that the High Court erred when it suspended the declaration of invalidity of Regulation 3(2)(a). There was no basis for the suspension order as the Constitutional Court does not need to confirm a declaration of invalidity relating to regulations. The Constitutional Court set aside the High Court judgment with regard to the suspension of the constitutional invalidity.

The effect of the judgment is that a child born to foreign parents qualifies for South African citizenship when the child turns 18 in terms of Section 2 of the Citizenship Act irrespective of when the child was born provided the child does not have the citizenship or nationality of any other country and his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act 51 of 1992). It should be noted that being the holder of a foreign passport is proof that that you are a citizen of that country and may deprive you from the opportunity to apply for South African citizenship. Foreigners can now also apply for citizenship after just five years of permanent residence.

Read judgement here:

Written by George Mua (Immigration assistant at Chris Fick & Associates)

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