Soil, blood, DNA and identity. Birthright citizenship from the ‘American dream’ to the ‘Rainbow Nation’.
[Some extracts below. Read the full Opinion as published on Business Day].
Birthright citizenship, as envisioned and enshrined in the US constitution, reflects the legal principle of jus soli (“right of soil”) in its widest application. The 14th constitutional amendment guarantees the citizenship of all children born in the US regardless of race, colour or ancestry, and irrespective of the parents’ or child’s immigration status. For some, it encapsulates, in their purest form, American values and the “American dream”. For others, it is responsible for cultural adulteration and contributes to the increase in illegal immigration and the contentious phenomenon of “anchor-babies”.
Many countries, including SA, have over the years taken steps to distance their nationality legislation from the principle of jus soli, either by removing it completely or, as per Trump’s order, by limiting its application. Trump’s order seeks to limit the application of jus soli to only children born in the US to parents who have permanent legal status at the time of the child’s birth.
Until January 1 2013, when the Citizenship Amendment Act of 2010 came into effect, the SA Citizenship Act of 1995 had a provision closely aligned to what Trump’s executive order seeks to implement. Before 2013, foreign children born of at least one permanent resident parent were automatically SA citizens at the time of birth, and their SA citizenship was captured and recorded on registering their births.
By 2013 this policy was curtailed entirely in SA, except for children born in the republic who would otherwise be stateless. SA’s stance on birthright citizenship shifted to a claim to citizenship that is formalised with an application — thus not automatic — and is ripe only after the child reaches the age of majority, a cognisant affirmative application made by those who have developed a deep sense of belonging over their formative years.Two further conditions must be met: the birth of the child must have been duly registered in SA in terms of the Births and Deaths Registration Act; and the child must have lived in SA from birth to the age of majority. Whether the parents or the child were permanent residents at the time of birth is no longer relevant, as long as the status is in place at the time of the application. On a side note, to date no home affairs form has been gazetted for these specific applications.
Other countries, including Italy, France, Germany and Poland, use parentage as predominant to the right to citizenship. Jus sanguinis (blood right) is a principle of citizenship that grants citizenship based on parentage, rather than place of birth. SA fully joined these ranks only after 2020, after the Constitutional Court judgment declaring invalid provisions of the Citizenship and Births and Deaths Registration acts, which, read together, in effect discriminated against SA children born overseas by barring them from claiming their right to SA citizenship unless their births had been registered within 30 days.
In terms of current citizenship legislation, SA applies the jus sanguinis principle as long as at the time of the birth of the child — irrespective the place of birth — at least one parent was an SA citizen. Now home affairs accepts for processing applications for the late registration of birth even when the birth occurred overseas. A registration of birth is deemed “late” when it does not occur within 30 days of birth.
Many South Africans born overseas have as a consequence sought to claim their right to citizenship retrospectively through this process in recent years. Inexplicably, the intake policies surrounding these applications vary substantially depending on whether an application is submitted in SA or from overseas, and the processing time frames can easily double for any citizenship-related application submitted overseas.
Read in full here.
By Claudia Pizzocri | CEO at Eisenberg & Associates Inc.