In an ever changing global movement of skills scenario, South Africans who are seeking to enter into short- and medium-term contracts with overseas companies are looking to their ancestral roots to determine whether they qualify for passports of other countries, which would facilitate their movement among countries.
In an ideal world South Africans who are going to work in an European Union (EU) country and who have an ancestral right to an EU member country passport can apply for that passport and then do not have to go through the formalities of a visa in order to enable them to work in that country.
A fact that is, however, not known commonly is that people who wish to retain their South African citizenship are required by law to apply for retention of their South African citizenship status prior to obtaining a foreign passport. Not meeting this requirement will cause an automatic loss of South African citizenship status on the date that foreign citizenship is acquired with the other passport. This is a severe penalty to pay but many countries in the world do take up such harsh or even harsher measures.
The Constitution of the Republic of South Africa does not prohibit dual citizenship or even multiple nationalities. It is the writer’s belief that it is potentially unconstitutional to automatically deprive someone of his/her citizenship status in this kind of scenario. However, until this is tested in the Constitutional Court, position and status quo remains.
It is therefore important to note that South African citizens who intend to obtain foreign citizenship should first apply for retention of their South African citizenship status. Only once that has been finalised, they may formally obtain their foreign passport.
You can complete a free assessment questionnaire on citizenship matters at http://www.immigration.org.za/ in order to assess your situation. The writer can also be of assistance with the determination of your status and application for retention of citizenship status
The automatic loss of citizenship status arises from the Citizenship Act (No. 88 of 1995 and thereafter). If foreign citizenship was acquired prior to that date a process still has to be followed in order to get exemption from the loss of South African citizenship status.
Since the most recent amendment to the Citizenship Act the law further requires that a South African citizen holding another passport must enter and leave South Africa on his/her South African passport. This is in line with international best practice. By the same token, a South African holding a British passport has to enter and leave the UK on his/her British passport.
A further provision makes it a criminal offence for a South African with dual citizenship to derive any benefit from his/her foreign passport that he/she normally would not have been entitled to on his/her South African passport, such as claiming VAT refunds to which they would not be entitled.
One of the most frequent questions coming our way from returning South Africans who obtained citizenship of other countries is related to the fact that they were unaware that they had lost their South African citizenship status because they did not follow the procedures properly by first applying for retention of their South African citizenship status. This means that they technically would require a visa to come back to South Africa on their foreign passport unless they follow other administrative processes. A South African born person who has automatically lost his/her South African citizenship status, indeed retains the right to permanent residence in South Africa and may apply to resume his/her South African citizenship status. However, a crisis will occur if he/she arrives back in South Africa on a foreign passport without a visa to enter South Africa. Alternatively they would be given a 90 day visitor’s visa, which would not be the appropriate visa.
If you do have any queries or are faced with any of the above situations you may contact the writer on enquiries@immigration.org.za.
JULIAN POKROY
JULIAN POKROY ATTORNEYS
IMMIGRATION, NATIONALITY AND REFUGEE LAW SPECIALISTS
