Amendments to the Citizenship Regulations, published on 12 June, then withdrawn and replaced on 7 July, have gone largely unnoticed in the general media. There are, however, some aspects which deserve a closer look.
Who can apply for citizenship?
1. Permanent residents living in the country for at least five years continue to qualify for naturalisation.
2. Children born in South Africa to at least one permanent resident can become citizens by birth when they turn 18, provided they have lived here their whole lives.
3. But section 4(3) of the Citizenship Act of 2010 provides that “children of parents who have not been admitted to the Republic for permanent residence” can also apply for naturalisation – if they were born and have lived in the country their entire lives until the age of 18. Officials have until now correctly interpreted this section to mean that children of parents who are “not citizens or permanent residents” in South Africa can apply under this section, which should include parents who do not have a status at all in the country. There was also no earliest birth date or other limitation being applied. However, the latest Regulations seem to vastly reduce the pool of potential applicants by restricting applications to:
a. Children of Temporary visa, asylum seeker visa or refugee status holders.
b. Persons born after 6 October 1995.
c. Persons who have no other citizenship, residency or connection in any other country.
d. Also, once citizenship is obtained by those who fall under all of the above, their immediate family cannot obtain visas or permanent residence based on their relation to the new citizen.
In our view, these restrictions go far beyond what the Act intended and (through the back door of the Regulations) attempt to significantly restrict rights clearly set out in the Citizenship Act. The Regulations are therefore ultra vires and unlikely to withstand constitutional scrutiny.