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How South Africa has squeezed options for migrants over 25 years

There is a widely recognised dissonance between the progressive, inclusive vision of South Africa’s constitution and xenophobia experienced by foreign nationals across South Africa. It can be tempting to describe this tension as one between good, inclusive laws and bad, xenophobic citizens.

But my recent investigation into South Africa’s citizenship law reveals that this is far too simplistic an explanation. My research shows that reduced access to citizenship in South Africa is shaped at the legislative level as well as through government’s implementation strategies – or the lack thereof.

I argue that this trend reveals hidden agendas within the country’s government structures to what I call “shrink South Africa”.

This is not what the founders of a democratic South Africa envisaged. The 1995 South African Citizenship Act replaced apartheid legislation. The new law was drawn up in line with the country’s constitution, which provided for a common citizenship for all. It thus extensively widened the scope of free and equal citizenship to all citizens.

This initial post-apartheid legislation was generous in scope. It provided means to acquire – or reacquire – citizenship for those who had lost or failed to acquire their citizenship due to apartheid policy. Examples included some who had lived in exile, who were forced to travel illegally, migrant workers, or “homeland” residents.

In the intervening years the act has been amended three times – in 2004, 2007 and 2010. With a few notable exceptions, these amendments have systematically reduced access to citizenship.

What happened?

The shrinking

Consider the following three illustrative cases revealed in my study of South African citizenship law.

First, under the 1995 legislation, children born to at least one non-South African permanent resident were entitled to citizenship. Following the 2010 amendment such children are allowed to access citizenship only after reaching the age of majority if they have lived in the republic from the date of their birth. This makes a significant difference to their access to education, travel and other citizenship-based opportunities.

Second, restrictions were placed around residency requirements for naturalisation. These became significantly stricter after the 2010 amendment. Initially a person had to live in South Africa for at least four years in the eight years before applying for citizenship, with one of those years being directly before the application. Since the 2010 amendment, a person has to live in South Africa (as a permanent resident) continuously for five years directly before applying, with no absence longer than 90 days.

On top of this, the Department of Home Affairs regulations appear to further tighten this access by requiring a blanket ten-year residency requirement with no absence longer than 90 days. Although not explicit in the regulations, current public information suggests that this intends to incorporate the five years of residency required for permanent residence under the 2002 Immigration Act.

Third, the spousal route to citizenship has similarly been restricted. This happened when the law was changed to include an open-ended “prescribed period”. In current regulations this is interpreted as the same as non-spousal routes – that’s 10 years. This is a significant shift from the previous two years of marriage and residence (which could be concurrent).

These examples show how the law been changed to reduce access to becoming a South African citizen. They also illustrate the interplay between legislation and regulations to achieve the same end. Regulations are determined through parliamentary committees and the Department of Home Affairs.

In some cases, the law remains relatively open, but the regulations work against the spirit of this openness. A good example is South Africa’s celebrated statelessness exception to naturalisation requirements. Citizenship can be granted to individuals born in South Africa who do not have

the citizenship or nationality of any other country, or have no right to such citizenship or nationality.

The Department of Home Affairs still does not have a regulation to act on this exception. Simply put, if there is no form to complete or process to follow, it becomes impossible to apply.

Two years ago Lawyers for Human Rights won a successful court action to rectify this. But the regulations have still not been updated.

Another example of the space being reduced relates to children. Access to citizenship is deeply shaped by the regulations of the Births and Deaths Registration Act, requiring valid documentation. Children born to parents who do not have official South African identification documents or valid passports and visas can lose access to citizenship. This is despite the fact that legislation provides access for stateless children and children of non-permanent residents on reaching majority.

A further complication is that the current regulations entail that a child born to parents who aren’t married to each other can only be registered by the mother. Even if a child’s father is South African, or a legal permanent resident, the child might remain unregistered and thus unable to access citizenship. This is under legal challenge.

Lawyers for Human Rights, among others, do excellent work in challenging the Department of Home Affairs on many of these issues. Unfortunately, even successful court actions are at times implemented very slowly, or not at all. South African citizens and residents ought to respond to this tightening access. They should build on existing legal activism through political channels. A political response can reveal hidden agendas and reshape political will towards developing a more just citizenship regime in line with the spirit of the country’s constitution.

The article is based on a longer paper “Shrinking South Africa: Hidden Agendas in South African Citizenship Practice”

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