South Africa: Requirements and procedures to acquire citizenship, by naturalization and by birth; whether it is a requirement for one or both parents of the applicant for citizenship by birth to have either permanent residency status or citizenship and if this status is verified by the authorities before the birth is registered (2008-August 2013)

1. South African Citizenship by Naturalization

According to the South African Citizenship Act No. 88 of 1995,

Any person who-

immediately prior to the date of the commencement of the South African Citizenship Amendment Act, 2010, was a South African citizen by naturalisation; or

in terms of this Act is granted a certificate of naturalisation as a South African citizen in terms of section 5, shall be a South African citizen by naturalisation.

Any Any person referred to in subsection (1) (b) shall, with effect from the date of the issue of the certificate, be a South African citizen by naturalisation.

A child born in the Republic of parents who are not South African citizens or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if-

he or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and

his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992).

(South Africa 1995, Sec. 4)

The website of the Department of Home Affairs indicates that the following individuals may acquire South African citizenship by naturalization:

Majors

You have a valid permanent residence permit or exemption

As a permanent residency permit holder you have had one year's ordinary residence in the Republic of South Africa [RSA] immediately prior to the application for naturalisation

After you acquired permanent residency you have had an additional 4 years of physical (actual) residence in the RSA during the eight years before the application for naturalisation (excluding the year of ordinary residence). Time spent in detention or residence subject to a condition do not count as ordinary or actual residence

Or you are married to a South African spouse, and you have had two years of permanent residence and two years of marriage to the South African spouse immediately prior to the application but after you acquired permanent residence status

Intend to continue to reside in the Republic or fall within the further categories specified in section 5(1)(e) ["he or she intends to continue to reside in the Republic or to enter or continue in the service of the Government of the Republic or of an international organisation of which the Government of the Republic is a member or of a person or association of persons resident or established in the Republic" (ibid., Sec. 5(1)(e))]

You are of good and sound character

You are able to communicate satisfactorily in any one of the official languages of South Africa

You have adequate knowledge of the duties and responsibilities of a South African citizen

Minors

The responsible parent can apply on behalf of a minor at any time provided the minor permanently and lawfully resides in the Republic. (ibid. n.d.e)

The website of the Department of Home Affairs lists the submission of the following documents as required for acquisition of South African citizenship by naturalization:

Forms DHA-63and DHA-757, completed by yourself

Your SA [South African] non-citizen identity document and copy thereof

Your marriage certificate (if applicable) and copy thereof

If divorced, your decree of divorce and copy thereof

An application for the re-issue of your identity document, including two identity document photographs that comply with the Passport and ID Photograph Specifications

The prescribed fee for the re-issue of your identity document

Proof of permanent residence/exemption and copy thereof

Form SAP 91 with a full set of fingerprints in order to obtain a police clearance report for applicants 18 years and older

Your parents or your legal guardian must sign the application form (BI-63 )if you are under the age of 18

Payment of the prescribed fee for naturalization. (ibid.)

Two government sources indicate that the documents must be submitted to the nearest office of the Department of Home Affairs (ibid.; ibid. n.d.a). According to the website of the South African Consulate General in New York, applications for naturalizations may be filed "only" in South Africa (ibid.).

2. South African Citizenship by Birth

The South African Citizenship Act No. 88 of 1995 indicates that citizenship by birth is acquired by

Any person-

who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010, was a South African citizen by birth; or

who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, shall be a South African citizen by birth.

Any person born in the Republic and who is not a South African citizen by virtue of the provisions of subsection (1) shall be a South African citizen by birth, if-

he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality; and

his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992). (ibid. 1995, Sec. 2)

According to the website of the South African Consulate General in New York, the following individuals are South African citizens by birth:

Persons born in South Africa before October 6, 1995.

Persons born in or out of wedlock on or after October 6, 1995 if one of his or her parents is either a South African citizen or a permanent resident. For those born before October 6, 1995 the mother of the child must have been a South African citizen at the time of the birth of the child.

Persons born in South Africa, adopted by parents of which one parent is a South African citizen and whose birth is registered.

Persons born in South Africa, not having the nationality of any other country and whose birth is registered.

Person born outside South Africa and whose parents were at the birth of the child in the service of the South African Government, representative, employee of a person, association of person resident, established in South Africa, was in the service of international organization to which the Government of South Africa is a member. (ibid. n.d.a)

The same website indicates that in order to register as a South African citizen by birth, an individual may contact the nearest office of the Department of Home Affairs (ibid.).

2.1 A Child of Permanent Residence Holders

The South African Citizenship Act No. 88 of 1995 states that

3. [a]ny person born in the Republic of parents who have been admitted into the Republic for permanent residence and who is not a South African citizen, qualifies to be a South African citizen by birth, if-

he or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and

his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act No.51 of 1992). (ibid. 1995, Sec. 2)

A comparative study on citizenship law in Africa, published by the Open Society Foundations (OSF), an international organization that works to build democracies with accountable governments and implements initiatives at the local level (OSF n.d), notes that, although the law grants citizenship from birth to a child whose parents are both permanent residents, the "Department of Home Affairs has established a practice of granting citizenship from birth to children with only one parent who is a permanent resident" (OSF Oct. 2010, 37). Similarly, the website of the South African High Commission in Canada indicates that if one or both parents of a child are permanent residence permit holders in South Africa, "the child is deemed to be a South African citizen" (South Africa n.d.b). In correspondence with the Research Directorate, a representative of Lawyers for Human Rights (LHR), a Johannesburg-based law clinic that aims to promote, protect and enforce legal and human rights (LHR n.d.a), also stated that if a child is born in South Africa to one or both permanent resident parents, the child will be able to apply for South African citizenship when he or she turns 18 years of age (ibid. 30 Aug. 2013).

2.2 A Child of Refugees or Temporary Permit Holders

According to the website of the South African High Commission in Canada, if both parents are refugees or temporary permit holders, the child is not a South African citizen and the child will not be included in the National Population Register (NPR) (South Africa n.d.b). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Birth Registration

The website of the Department of Home Affairs and the website of South Africa Government Services both indicate that a child must be registered within 30 days of his or her birth (ibid. n.d.c; ibid. n.d.d). Article 9 of the Births and Deaths Registration Act No. 51 of 1992 states that

In the case of any child born alive, any one of his or her parents or, if neither of his or her parents is able to do so, the person having charge of the child or a person requested to do so by the parents or the said person, shall within 30 days after the birth give notice thereof in the prescribed manner to any person contemplated in section 4.

Subject to the provisions of section 10, the notice of birth referred to in subsection (1) of this section shall be given under the surname of either the father or the mother of the child concerned or the surnames of both the father and mother joined together as a double barrelled surname.

Where the notice of a birth is given after the expiration of 30 days from the date of birth, the Director-General may demand that reasons for the late notice be furnished and that the fingerprints be taken of the person whose notice of birth is given.

Where the notice of a birth is given after the expiration of one year from the date of birth, the birth shall not be registered unless the notice of the birth complies with the prescribed requirements for a late registration of birth.

No registration of birth shall be done of a person who dies before notice of his birth has been given in terms of subsection (1).

The person to whom notice of birth was given in terms of subsection (1) shall furnish the person who gave that notice with a birth certificate, or an acknowledgement of receipt of the notice of birth in the prescribed form, as the Director-General may determine.

No person's birth shall be registered unless a forename and a surname have been assigned to him. (ibid. 1992, Sec. 9)

In order to register a child's birth, a parent, parents or legal guardian must submit Form BI-24 to the nearest office of the Department of Home Affairs or to the nearest mission if abroad and pay an application fee (ibid. n.d.c). A copy of Form BI-24 is attached to this Response. Two sources indicate that late birth registrations are accepted but must be accompanied by a reason why the birth was not registered within 30 days, among other requirements (ibid. n.d.d.; ibid. n.d.c).

According to the LHR representative, "all the information is verified before the birth is registered" (LHR 30 Aug. 2013). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Two sources indicate that after the registration of birth, an abridged birth certificate is issued free of charge (South Africa n.d.c; ibid. n.d.d). The website of the Department of Home Affairs notes that unabridged birth certificates are issued upon request (ibid. n.d.c). According to the website of the South Africa High Commission in Canada, an abridged certificate contains only the details of the child being registered and an unabridged certificate contains the full details of the child and his or her parents (ibid. n.d.b). Two sources indicate that as of March 2013, the Department of Home Affairs will only be issuing unabridged birth certificates; abridged certificates will no longer be issued (LHR n.d.b; AllAfrica 31 Jan. 2013). Further and corroborating information on whether the Department of Home Affairs stopped issuing abridged certificates could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

AllAfrica. 31 January 2013. "South Africa: Home Affairs to Issue Unabridged Birth Certificates on the Spot." (Factiva)

Lawyers for Human Rights (LHR). 30 August 2013. Correspondence from a representative to the Research Directorate.

_____. N.d.a. "About Lawyers for Human Rights." [Accessed 23 Aug. 2013]

_____. N.d.b. Jessica P. George. "Changing the Citizenship Landscape in South Africa - a Long Way to Go." [Accessed 10 Sept. 2013]

Open Society Foundations (OSF). October 2010. Bronweb Manby. Citizenship Law in Africa: A Comparative Study. [Accessed 4 Sept. 2013]

_____. N.d. "About the Open Society Foundations." [Accessed 10 Sept. 2013]

South Africa. 1995. South African Citizenship Act No. 88 of 1995. Document sent to the Research Directorate through correspondence by a representative of Lawyers for Human Rights.

_____. 1992. Births and Deaths Registration Act No. 51 of 1992. Document sent to the Research Directorate through correspondence by a representative of Lawyers for Human Rights.

_____. N.d.a. South African Consulate General, New York. "South African Citizenship." [Accessed 21 Aug. 2013]

_____. N.d.b. South Africa High Commission in Canada, Ottawa. "FAQs." [Accessed 4 Sept. 2013]

______. N.d.c. Department of Home Affairs. "Birth Certificates." [Accessed 6 Sept. 2013]

_____. N.d.d. South Africa Government Services. "Registration of a Birth." [Accessed 6 Sept. 2013]

_____. N.d.e. Department of Home Affairs. "Citizenship." [Accessed 6 Sept. 2013]

Additional Sources Consulted

Oral sources: Attempts to contact the following organizations were unsuccessful: Lawyers for Human Rights in Pretoria, South Africa; South Africa - Consulate General in Toronto, Department of Home Affairs, and High Commission in Ottawa.

Internet sites, including: Acts Online; African Centre for Migration and Society, University of the Witwatersrand, Johannesburg; African Commission on Human and Peoples' Rights; All Africa; Amnesty International; British Broadcasting Corporation; Citizenship Rights in Africa Initiative; Cornell University Law School Legal Information Institute; Factiva; Human Rights Watch; International Crisis Group; International Federation for Human Rights; Legal Resources Centre; New York University School of Law GlobaLex; Parliamentary Monitoring Group; Polityorg.za; South Africa - Consulate General in Toronto, Department of Home Affairs, Department of Justice and Constitutional Development, Government Information, Government Online, High Commission in Ottawa, Parliament, Public Protector South Africa, South African Government News Agency, South African High Commission in Ottawa; Southern African Legal Information Institute; thesouthafrican.com; Sunday Tribune; United Nations - NATLEX, Refworld; United States - Department of State, Law Library of Congress; University of the Witwatersrand; WorldLll.

Attachment

South Africa. N.d.a. South African Consulate General, New York. "Notice of Birth (Persons Under One Year)." [Accessed 30 Aug. 2013]