When the issue of Dual Nationality will affect you
The
issue of acquisition of a
foreign citizenship for most South Africans only comes to light when
such South
African Citizen goes to apply for an extension of a South African
Passport. The
Passport application form
has a specific citizenship section which requires you to complete
information
on whether or not you have acquired the citizenship of another country. If so, full details need
to be provided of
this. Once this
detail has been
completed and the form handed over to the relevant Home Affairs or
Consular
Mission Official, the applicant is informed that they may have lost
their South
African citizenship as a result of the acquisition of their foreign
citizenship. No
Passport renewal application will then be
accepted until such time as the citizenship matter has been clarified.
A
further way that South African
citizens are often advised of the issue of Dual Nationality is upon
travel in
or out of South Africa on a foreign passport.
The South African Citizenship Act specifically states that
any South
African citizen must travel in and out of South Africa on a South
African
Passport. As a
result, if you are
travelling in and out of South Africa on a foreign passport, in such
foreign
passport would obviously state your birth place as South Africa, you
will most
likely be taken aside and questioned by the Immigration Officers at our
Airports or Border Posts. It
is actually
an offence to travel in or out of South Africa on a foreign passport,
if you
are indeed a South African citizen.
On
this basis, for a lot of South
African citizens who have acquired a foreign citizenship, even where
they have
not lost their South African citizenship as a result, they are
continuously
questioned by Immigration Officers at Home Affairs Offices, Consular
Missions
or our Airports or Border Posts regarding such dual citizenship. On this basis, a lot of
South African citizens
are aided by a determination of status which confirms that they are
indeed
still a South African citizen or would confirm if they had in fact lost
their
South African citizenship.
Please
take note that the determination of status process is the first step in
respect
of all of the procedures that have been mentioned above. The determination of status is an
application
that we can assist you with without you even needing to attend upon a
Home
Affairs Office, Consular Mission or be in South Africa at all. If you would like our assistance on
this, or
any other of the procedures mentioned above, we would suggest that you
complete
our assessment of that you e-mail us at enquiries@immigration.org.za.
The meaning of a Voluntary and Formal Act
Most
unfortunately, nowhere in
any of our South African Citizenship Actc have the words “voluntary and
formal
act” ever been defined.
According
to what the Department
of Home Affairs has gone by in respect of a “definition” for a
voluntary and
formal act in the past, is that it is where a person applies for
citizenship,
being over the age of 18 years, and such person signs a document such
an oath
or declaration or even a form in order to acquire such foreign
Citizenship.
Automatic
conferment of foreign citizenship is no longer a possibility in our day
and
age.
As a result, it
does mean that the
acquisition of a foreign citizenship will almost always be a voluntary
and formal
act.
The acquisition of
citizenship, no
matter for what country, will at some stage inevitably include a
requirement
for a form to be filled in or a document to be signed, which would
automatically make the application for such foreign citizenship
voluntary and
formal.
South African citizens who wish to acquire the citizenship of another country and retain their South African citizenship
The
South African Citizenship Act
specifically makes provision for an applicant to be able to retain his
South
African citizenship before acquiring the citizenship of another country. This retention application
is made available
in order to prevent automatic loss of South African citizenship. Most unfortunately, not
many South Africans
are aware of this application or the need to complete such application
before
acquiring a foreign citizenship in order to ensure that no loss of
South
African citizenship takes place as a result.
The
first step in the process
here would always be a determination of status which is a process that
allows
the Department of Home Affairs to conduct an investigation into your
citizenship status and confirm that you are indeed still a South
African citizen. Once
this fact has been confirmed, only then
is it possible to apply for a retention of your South African
citizenship
status. Once the
retention is finalised,
a letter confirming retention of South African citizenship is issued by
the
Department of Home Affairs office or Consular Mission in respect of a
successful application.
Thereafter,
you would be entitled
to apply for the relevant foreign citizenship without losing your South
African
citizenship as a result.
It
is important to take note that the same process is required to be
followed in
respect of each and every foreign citizenship acquired.
South African citizens who have already
acquired their citizenship of another country and wish to resume their
South African citizenship – foreign citizenship acquired before October
1995
Due
to the new South African
Citizenship Act coming into force in October 1995, this does mean a
separation
of citizenship related matters in respect of applicants who acquired
their
foreign Citizenship before or after October 1995.
In
respect of South African Citizens
who acquired their foreign citizenship before October 1995, then an
additional
exclusion exists in respect of when an applicant will not lose their
South
African citizenship.
The
South African Citizenship Act
of 1949 would be applicable here and, although this is very similar to
the 1995
Act, there are some subtle differences.
Under
the 1949 Act a South
African citizen would only lose their South African citizenship if they
acquired a foreign citizenship, whilst not being a minor, by some
voluntary and
formal act and if acquisition took place whilst the South African
citizen was
outside the Republic of South Africa.
This
then raises two (2) distinct
exclusions from the loss of South African citizenship.
A South African citizen, who acquired their
foreign citizenship prior to October 1995, would not have lost their
South African
citizenship if they were still a minor when they acquired it or if they
were
inside the Republic of South Africa when they acquired such foreign
citizenship.
In
a situation where a South
African citizen has in fact lost their South African citizenship as a
result of
the acquisition of a foreign citizenship acquired prior to 1995, and
where such
applicant was indeed permanently residing in South Africa or intending
to
return to South Africa permanently then an exemption application could
be
applied for. The
exemption application
would be an exemption from the loss of South African citizenship and
would
allow such applicant to resume South African citizenship in its
entirety.
Please take note that this process would, in the end, include also
applying for
a new South African Identity Document and South African Passport.
In
a situation where such an applicant was not intending to reside in
South Africa
permanently again, then they do retain their right to South African
Permanent
Residence.
As such, they would
still be
entitled to obtain a Permanent Residence endorsement into their foreign
passport.
South African Citizens who have already
acquired their Citizenship of another country and wish to resume their
South African Citizenship – foreign Citizenship acquired after October
1995
The
South African Citizenship Act
of 1995 which applies to all applicants who acquired their foreign
citizenship
after October 1995, differs only slightly from the 1949 Act mentioned
above.
According
to the 1995 Act a South
African citizen will lose their South African citizenship if, whilst
not being
a minor, they acquire the citizenship of another country by way of a
voluntary
and formal act. The
exclusion of not
losing your South African citizenship if you acquire a foreign
citizenship
whilst in South Africa was no longer applicable under the 1995 Act and,
as
such, it no longer made a difference whether you were inside or outside
South
Africa when acquisition of a foreign citizenship took place.
Similarly
to the process that
would be followed under the 1949 Act, there is a difference here
between
applicants who are intending or are in fact already residing
permanently in
South Africa and applicants who have no intention to return to South
Africa. In respect
of the applicant who has no
intention to return to South Africa, here the applicant still retains
the right
to South African Permanent Residence.
As
a result, such a person could obtain a Permanent Residence endorsement
into
their foreign passport. In
respect of
the applicant who is residing permanently in South Africa or intends to
do so,
an application can be made here for a resumption of South African
citizenship. Once
again, this will ultimately involve the
process of applying for a new South African Identity Document and
Passport.
We
are often asked what the difference is between being a South African
Permanent
Resident as opposed to resuming South African citizenship in its
entirety.
The main
differences are that as a South
African Permanent Resident, you would no longer be entitled to a South
African
citizen Identity Document and South African passport. However, you would hold the entitlement
to a
non South African citizen Identity Document or Permanent Resident
Identity
Document.
Your South African
Identity
Number would also change slightly as a result of now becoming a
Permanent
Resident.
Furthermore, you
would no
longer be entitled to vote in South Africa’s General or Municipal
elections.
Apart from that, you retain all other rights and responsibilities that
a South
African citizen would. You would still
be able to enter and exit South Africa as you please, work, study, run
a
business etc. in South Africa. Should
you then ever return to South Africa permanently, you would still be
entitled
to apply for a resumption of your South African citizenship at that
stage.