The permit services in terms of the Immigration Act will be rendered by the Department of Home Affairs as follows :
Per Home Affairs proclamation and gazette - 30 June 2021
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.
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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 Covid-19 pandemic and provisions of the Disaster Management Act have reduced already-slow Home Affairs processes to a crawl – impacting thousands of people and creating a backlog that could take years to clear.
The impact of the Covid-19 pandemic is set to further delay and derail Home Affairs processes, with potentially tens of thousands of people negatively impacted as a result.
While the Department of Home Affairs was mandated to limit services at the onset of the State of Disaster in March last year; the Department has been slow and inconsistent in resuming services.
Currently, only visa related services are being rendered, with no permanent residence or citizenship-related services being permitted.
After initially issuing badly drafted and confusing directives, the Department confirmed in March this year that it had extended the validity of short term visas to the end of June this year, and the validity of long term visas to the end of July, which allowed breathing room for those whose visas expired during the national state of disaster.
However, the scene is being set for a massive backlog at the end of June and July, when thousands of people must submit applications for renewal at a time when Home Affairs processes appear to be slower and more inconsistent than ever before.
Slow and inconsistent processes challenge foreigners
Despite officially not currently processing permanent resident and citizenship-related applications; Home Affairs is in fact processing some permanent residence applications, but with startling inconsistency, and is rejecting more than it approves.
Applicants are not able however to appeal these negative outcomes since the Department is not meant to be rendering these services, which is also going to create a massive backlog once they resume doing so.
It should be noted that the Preamble to the Act provides, amongst other things, that visas and permanent residence permits are to be issued expeditiously and on the basis of simplified procedures and objectives without consuming excessive administrative capacity.
The Department is not fulfilling its obligations in this regard: random rejections are set to create huge administrative burdens for an already severely understaffed department.
Our office is seeing many visa and permit applications rejected for reasons that should not apply. In the case of temporary visa applications, where it was once very rare for an application to be pending for more than three months, we now have a backlog of approximately five months, while the Department states it is currently not dealing with citizenship services, determination of status applications or anything related to them – even enquiries.
This raises questions about how a backlog can be possible when the Department offers fewer services than it did before the pandemic.
In addition, the lack of focus on permanent residence raises concerns that efforts may still be ongoing to remove permanent residency as a status category and eliminate the possibility of becoming a citizen by naturalisation, as regulated in the South African Citizenship Amendment Act.
There are signs based on the Minister’s White Paper in 2017, and a revised immigration bill currently being drafted, that categories of visas and permits currently in existence may be on their way out, placing holders of these visas and permits in a precarious position.
We are also seeing a growing number of rejections of critical skills visa applications, freelance work applications by foreign spouses of South Africans, and work authorisations for foreigners with a retired persons visa.
These rejections, often for nonsensical reasons – for example, Department staff stating that they could not get hold of an applicant’s employer – strip people of their right to work. Because appeals take so long to process, many applicants risk losing their jobs, adding to the unemployment problem at a time when the government should be accelerating the labour market and helping grow the economy.
This situation will result in a flood of applications and appeals when the Department resumes full service again.
Hope for South Africans
However, while challenges remain for foreign-born people seeking to live and work in South Africa; there is a glimmer of hope for South African-born people hoping to work abroad and remain South African citizens.
Currently, South Africans are frequently stripped of their South African citizenship without warning if they apply for citizenship of another country.
A recent court case launched by the Democratic Alliance challenges this, arguing that section 6(1)(a) of the Citizenship Act 88 of 1995 is inconsistent with the Constitution because certain clauses of the act deprive citizens who have assumed foreign citizenship of their right to vote, hold a South African passport and retain citizenship.
The Minister of the Department of Home Affairs countered that South Africans could retain their South African citizenship – and thus have dual citizenship – if they complied with the steps laid out in the Act.
The Act states that individuals will automatically lose their citizenship unless they apply for a letter of retention to keep their South African citizenship, and specifically excludes dual citizenship by minors and/or by marriage.
As South Africans confronted by job losses and a difficult economic environment increasingly look to other countries for opportunities, they should be able to retain their citizenship while abroad – if they follow the processes.
For those who were summarily stripped of citizenship, there is a hope that while judgement in this case was reserved, if the Democratic Alliance should win, they could be permitted to reclaim their citizenship in future.
www.samigration.com
The short answer
If you are older than 18, you don't need your parents' permission.
The whole question
I was born out of wedlock and so I was given my mother's maiden name. I am now 23. My mother has since gotten married and now wants me to change my surname to that of my stepfather instead of my biological father with whom I've been living since Grade 3. Can I change my surname to that of my biological father without my mother's permission?
The long answer
If you were a minor (under 18 years old) you would have to get your mother’s permission to change your surname, but as you are 23 years old, you have the right to change your surname without permission from your mother.
You need to fill in Form B1-196 from the Department of Home Affairs. Form B1-196 is “Authority to assume another surname.” You can also download the form online.
On the application form, there is a section where you must fill in “a sufficient reason” for changing your name.
You will also need to submit Form DHA-9, which is the full fingerprints form. This form cannot be downloaded but is obtainable at Home Affairs or at police stations.
You will also need to submit your birth certificate with both parents’ names. If your father’s name is not on the birth certificate, he might need to submit an affidavit explaining the circumstances of your birth, that you have been living with him since Grade 3 and that he is in favour of you taking his surname.
All this must be submitted to Home Affairs. The officials there will examine the forms and scrutinise the reason given for wishing to change your surname. If they are satisfied that it is a valid and sufficient reason, they will send your application on to the Director-General (DG) who will authorise the change of surname.
After authorising it, the DG will publish the amended name in the Government Gazette. Then the DG will issue a Certificate from the Population Register on the change of name.
All this usually takes about three to four months but with the lockdown it could take a lot longer.
"Home Affairs also says that you must be a South African citizen or permanent residence permit holder with a valid South African ID
The following question is part of Groundup's Answers to your questions series and comes from a reader who wants to know if an abandoned child can get a birth certificate from Home Affairs.
The short answer
Yes, but you may need help to get Home Affairs to comply.
The whole question
My child's friend was abandoned by her mother - we do not know where she is. I am now looking after her, but she does not have any documents to apply for a birth certificate. She is 15 years old.
The long answer
All birth registration is regulated by the Births and Deaths Registration Act of 1992. Late birth registration is split into three categories:
1. After 30 days but before one year
2. After one year but before 15 years
3. After 15 years.
These are the documents that Home
Affairs says are needed to register a birth after 15 years:
Application for an ID (Form B1-9)
Completed Forms DHA-24, DHA-24/A x 2 and DHA-288 for the registration of birth
Supporting documentation and written reasons why the birth was not registered within 30 days of birth.
Home Affairs also says that you must be a South African citizen or permanent residence permit holder with a valid South African ID.
Under Level 3 lockdown regulations, which we are in again (June 2021), a person had to make an appointment with Home Affairs to apply for late birth registration, so this is probably the case now.
Even though Section 28 of our Constitution says that every child has the right to a name and nationality from birth, many undocumented children struggle to be issued a birth certificate by Home Affairs.
In 2018 Lawyers for Human Rights took Home Affairs to court to force them to issue a birth certificate to an abandoned child, which they had been refusing to do.
The Pretoria High Court ordered Home Affairs to issue a birth certificate to the child.
One of the problems with Home Affairs, though, is that officials are not always aware of court rulings and may not always comply with them. Because of Covid-19, Home Affairs has also got a significant backlog, and it may take even longer than usual