STEFANIE DE SAUDE DARBANDI: Having a foreign safety net is costing South Africans their citizenship

The number of South Africans emigrating, or planning to do so, is reported to have soared amid ongoing load-shedding, increasing crime and the frustration of dealing with crumbling infrastructure. Recently, a Social Research Foundation survey found that 53% of university graduates and 43% of those who earned more than R20,000 a month may leave the country, amid falling confidence in SA’s future.

Not all of those considering emigration do so immediately. Anecdotal reports indicate that thousands, possibly tens of thousands, are taking advantage of ancestral visa and “golden visa” opportunities to secure foreign citizenship as a safety net in case the situation in SA worsens. Golden visa programmes, now available in over 100 countries around the world, offer citizenship or residence status through investment into the host country.         

Among those who do make the move abroad, some are applying for foreign citizenship over permanent residence to cease tax residency in SA and so avoid paying tax here while living and working in another country. What many of these South Africans are unaware of is that securing foreign citizenship could strip them of their right to SA citizenship, unless they apply directly to the home affairs minister to keep it, an application they must make before acquiring the foreign citizenship status. Such applications can take months or years to process.

Automatic loss

Section 6(1) of the SA Citizenship Act states that South Africans who obtain citizenship of another country automatically cease to be SA citizens. However, section 6(2) of the act does allow South Africans to retain their citizenship provided they have applied directly to the minister for a certificate of exemption.

An adult SA citizen accordingly automatically loses their citizenship upon acquiring a foreign nationality (other than by way of marriage) unless they first obtain permission from the minister. The statue unfortunately provides no criteria on the basis of which the ministerial discretion should be exercised.

Thousands of people who were born in SA and acquired foreign citizenship were unaware of this, and therefore only discovered they had ceased to be citizens when they applied to renew their SA passports. This indicated that retaining their SA status was always intended, contrary to a high court judgment in which it was held that when South Africans fail to obtain the necessary permission from the minister this amounts to a clear intention to reject one’s ties with the country.

This decision was made essentially on the government’s view that acquiring a foreign citizenship without informing the minister suggests an intention to voluntarily lose one’s citizenship status, which from the cases we regularly deal with is far removed from the reality.

Describing this as a violation of human rights, the DA has been challenging the department of home affairs in a lengthy court battle, arguing that section 6(1)(a) of the SA Citizenship Act is unconstitutional. The constitution explicitly states in section 20 that “No citizen may be deprived of citizenship”. The DA is now taking the case to the Supreme Court of Appeal, with February 23 the set-down date.

‘Obstructive process’

For years our practice has received regular calls from South Africans with dual citizenship who are distressed to discover they have lost their SA citizenship. In addition, more than 11,000 people belong to the SA Dual Citizenship Campaign Facebook page, formed by concerned South Africans trying to address inconsistencies and irregularities surrounding the automatic loss of citizenship and what they describe as “the obstructive process to regain citizenship”.

For those living in other countries, losing their citizenship comes as a blow. Most people who have dual citizenship don’t want to give up their South African citizenship, and would have applied to the minister had they known they should do so.

But for born-in-SA or naturalised South Africans still living in the country, learning they have lost their citizenship often comes as an even bigger shock.

Many of them acquired a foreign citizenship “just in case” and have never even visited the country in which they now hold citizenship. For born-in-SA citizens, losing their citizenship means they may no longer vote and may not hold SA passports, while for naturalised citizens it means they are illegal foreigners subject to arrest, detention and deportation. They could also be at a serious disadvantage when applying for jobs or business deals where SA citizens are given preference over foreigners.

This automatic stripping of citizenship is not only distressing — it is also contributing to people circumventing legal processes. Since losing one’s citizenship means you cannot renew your passport, many people are now opting not to disclose their dual citizenship to home affairs officials when they apply to renew their passports, since once they have disclosed this information and the system is updated they will no longer be able to renew their passports even if they intend to continue living in SA.

Those who have lost their citizenship can apply to have it reinstated as long as they live in the country or have returned to SA permanently. However, it should be noted that many people who have lost their status have encountered significant difficulties while applying to have their citizenship reinstated. We have heard many reports of people encountering unhelpful and outright rude officials when they seek advice on the matter at home affairs offices.

Some have been turned away because the specific home affairs office does not take such applications, while during the lockdown many were told that the department was not rendering that service. At offices where applications were accepted, the processing can take between two and 10 months on average.

• De Saude Darbandi is an immigration and citizenship law specialist at De Saude Darbandi (DSD Immigration) Lawyers.