Ruling clears path to citizenship for children born in South Africa to foreign parents

IMPACT – MEDIUM

What is the change? The Western Cape High Court has ruled that people born to foreign parents in South Africa must be allowed to apply for citizenship, regardless of their date of birth.

What does the change mean? Up until now, the Department of Home Affairs had rejected applications from people born to foreign parents in South Africa before 2013, when an amendment to the country’s citizenship law took effect to allow children of foreign parents to apply for citizenship. The court ruled that the amendment should be applied retrospectively to applicants no matter when they were born.

• Implementation time frame: Ongoing.
• Visas/permits affected: Citizenship applications.
• Who is affected: Children of foreign parents born in South Africa.
• Impact on processing times: The court said that once applications are filed, DHA should make citizenship determinations within 10 days.
• Next steps: BAL will continue to follow the outcome of this case, including the possibility that DHA will appeal the ruling to South Africa’s Supreme Court.

Background: The case was brought by a group of people (now adults) who were born in South Africa to foreign parents. At issue was whether those born to foreign parents before 2013, when a 2010 amendment to South Africa’s citizenship law took effect, could apply for citizenship. DHA argued that the law should be applied only to children born in or after 2013, and that applicants born before then were not prejudiced because they were allowed to apply for permanent residence. The court disagreed, however, saying that the case involved constitutional entitlements, including the right to dignity, and that the statute should be applied retrospectively.

BAL Analysis: The ruling clears the way for thousands of people born in South Africa to foreign parents to apply for citizenship. Applicants must meet other citizenship requirements, including having a birth certificate to establish that they were born in South Africa and having lived in the country since their birth. Those with questions should contact BAL.

This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.

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