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Back to Index of Laws Concerning Children of Undocumented Migrants

Summary

Under South African law, it appears that children of illegal foreigners are not entitled to permanent residency or citizenship.  South Africa has programs permitting qualifying illegal foreigners from Zimbabwe and Lesotho to temporarily adjust their status so that they can work, conduct business, or study in South Africa for the duration of the programs.  However, these programs do not entitle the participants to adjust their status to permanent residency or citizenship. 

I. Introduction

South Africa’s immigration system is controlled by the Immigration Act[1] and its subsidiary legislation, the Immigration Regulations.[2]  An alien who is not a permanent resident in South Africa may be admitted to the country only if he or she is issued a valid visa.[3]  South Africa has various classes of visa.[4] 

The acquisition of South African citizenship is governed by the 1995 Citizenship Act[5] and its subsidiary legislation, the Citizenship Regulations.[6]  The Department of Home Affairs administers the Citizenship Act and the Minister of the Department has wide discretionary powers on an array of issues, including with regard to the granting of citizenship to a foreigner; however, all his decisions are subject to judicial oversight.[7]    

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II.  Illegal Foreigners

An “illegal foreigner” is a foreigner who is in South Africa in violation of the Immigration Act, meaning a person “without documentation to prove legal status.”[8]  This does not include the holders of an expired asylum transit visa.  While the Immigration Act states that a holder of an asylum transit visa becomes an illegal foreigner if his/her visa expires before he/she can report to a Refugee Reception Office, a 2012 Supreme Court of Appeal decision found that “the lapse of an asylum transit visa by itself does not render an asylum seeker an illegal immigrant.”[9]  The Court has also held that “undocumented asylum seekers not in possession of asylum transit visas cannot be summarily considered ‘illegal foreigners’ ”[10]

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III.  Permanent Residency Requirements

Children of illegal foreigners are not entitled to permanent residency.  Under South African law, residency may be established through one of two possible means: direct residency or residency on other grounds.  A child is eligible to acquire direct residency if he/she is under twenty-one years of age and the child of a citizen or a permanent resident.[11]  In this case the permit would expire upon the child reaching the age of twenty-one and failing to apply for confirmation.[12]  A child may also acquire direct residency if he/she is the child of a citizen.[13]  In addition, a child may be able to establish residency if he/she is the relative of a citizen or permanent resident within the first degree of kinship.[14]  The source of entitlement to acquire permanent residency in all these circumstances is a relationship to a person whose presence in South Africa is legal.

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IV.  Citizenship Requirements

Acquisition of citizenship also requires a connection to a documented person.[15]  A person born in or outside of South Africa is a citizen by birth if at least one of his parents is a South African citizen.[16]  Anyone born in South Africa to non-South African citizens is a citizen by birth if he/she does not already have or qualify for citizenship of a foreign country and his/her birth has been duly registered in South Africa in accordance with the applicable law.[17]  In addition, anyone born in South Africa to parents who have been granted permanent residency permits qualifies for citizenship by birth if he/she has lived in the country from the time of birth to the time of attaining the age of majority, and his/her birth has been duly registered in accordance with the applicable law.[18]  It appears that the birth of a child of an illegal foreigner cannot be registered.[19]

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V.  Special Dispensations

In 2009, South Africa introduced a special dispensation for citizens of Zimbabwe living in South Africa illegally.  Known as the Dispensation of Zimbabwe Project (DZP), this program temporarily regularized the immigration status of Zimbabweans who met certain requirements.[20]  The program permitted Zimbabweans who had a valid Zimbabwean passport, proof of employment/business/accredited study, and no criminal record to apply for temporary status so that they could work, conduct their business, or study in South Africa.[21]  The program, which allowed for around 250,000 Zimbabwean nationals to temporarily adjust their status, expired in December 2014 and was subsequently renewed.[22]  Once the current program expires in December 2017, it will be replaced by one that will run through 2021.[23]  Significantly, this program accords temporary legal status to qualifying applicants and does not “entitle the holder the right to apply for permanent residence irrespective of the period of stay in the Republic of South Africa.”[24]  

In October 2015, South Africa introduced a similar program, Lesotho Special Permit (LSP), for citizens of Lesotho illegally living in South Africa.[25]  Like the Zimbabwe program, while special dispensation entitles the holder to work, do business, or study for the duration of the program, it does not entitle him/her to apply for and obtain permanent residency.[26]  The program will expire in December 2019.[27]

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Prepared by Hanibal Goitom
Foreign Law Specialist
September 2017


[1] Immigration Act No. 13 of 2002, 15 Butterworths Statutes of the Republic of South Africa [BSRSA] (rev. through 2016), available on the University of Pretoria website, at http://www.lawsofsouthafrica.up.ac.za/ index.php/browse/citizens-and-foreigners/immigration-act-13-of-2002/act/13-of-2002-immigration-act-9-aug-2015-to-date-pdf/download, archived at https://perma.cc/65GU-AGKH.

[3] Immigration Act § 9.

[4] Id. §§ 11–24; Immigration Regulations §§ 11–22.

[7] Citizenship Act §§ 1, 22, & 23; F. Venter, Citizenship and Nationality, in 2(2) The Law of South Africa 127, 133 (W.A. Joubert et al. eds., 2003).

[8] Immigration Act § 1; Corey Johnson & Sergio Carcitto, The State of the Asylum System in South Africa, in States, The Law and Access to Refugee Protection 167, 172 (2014).

[9] Johnson & Carcitto, supra note 8, at 172.

[10] Id. at 173.

[11] Immigration Act § 26.

[12] Id.

[13] Id.

[14] Id. § 27.  Persons considered within the first step of kinship are parents, children, and spouses.  Permanent Residence in South Africa, South Africa Embassy in Washington, D.C., http://www.southafrica-newyork.net/homeaffairs/immigration.htm (last visited Sept. 28, 2017), archived at  https://perma.cc/LAA8-AJZ5.

[15] Press Release, Department of Home Affairs, Media Statement on How Citizenship is Acquired and Children Registered in South Africa (Apr. 11, 2017), http://www.home-affairs.gov.za/index.php/statements-speeches/958-media-statement-on-how-citizenship-is-acquired-and-children-registered-in-south-africa, archived at https://perma.cc/L6G8-AAE3; Marissa Rogers & Uvi Chanderparsath, South Africa: Dispensation of Zimbabweans Project and the Introduction of the New Zimbabwe Special Permit (Oct. 2014), http://www.ey.com/Publication/ vwLUAssets/South_Africa_int roduces_new_Zimbabwean_Special_Dispensation/$FILE/October 22 South Africa - Dispensation of Zimbabweans Project and the introduction of the new Zimbabwean Special Dispensation Permit.pdf, archived at https://perma.cc/ABB8-RC86.

[16] Id. § 2.

[17] Id.

[18] Id.

[19] Press Release, Department of Home Affairs, supra note 15.

[20] New Zimbabwe Dispensation Permit Announced, Intergate Immigration, http://www.intergate-immigration.com/blog/new-zimbabwean-special-dispensation-permit-announced/ (last visited Sept. 18, 2017), archived at https://perma.cc/K9CF-JQUS.

[21] Id.  

[22] Press Statement, Department of Home Affairs, Home Affairs Clarifies Status of Special Permits for Zimbabweans (May 20, 2014), http://www.home-affairs.gov.za/index.php/statements-speeches/463-home-affairs-clarifies-status-of-special-permits-for-zimbabweans, archived at https://perma.cc/CD2G-FBXJ.

[23] Statement by Minister Mkhize on the Closure of the Zimbabwean Special Permit (ZSP) and the Opening of the New Zimbabwean Permit (ZEP) (Sept. 8, 2017), http://www.dha.gov.za/index.php/statements-speeches/1034-statement-by-minister-mkhize-on-the-closure-of-the-zimbabwean-special-permit-zsp-and-the-opening-of-the-new-zimbabwean-exemption-permit-zep, archived at https://perma.cc/V2T6-D5C7.

[24] Id.

[25] Statement by Home Affairs Minister Malusi Gigaba at the Media Briefing on the Closing of the Zimbabwe Special Permit Programme and the Opening of the Lesotho Special Permit (Nov. 25, 2015), http://www.home-affairs.gov.za/index.php/statements-speeches/704-statement-by-home-affairs-minister-malusi-gigaba-at-the-media-briefing-on-the-closing-of-the-zimbabwe-special-permit-programme-and-the-opening-of-the-lesotho-special-permit, archived at https://perma.cc/3KEC-E63N.

[26] Id.

[27] Press Release, Department of Home Affairs, Media Statement on Minister Gigaba’s Visit to the Lesotho Special Permit Centre (May 10, 2016), http://www.home-affairs.gov.za/index.php/statements-speeches/782-media-statement-on-minister-gigaba-s-visit-to-the-lesotho-special-permit-centre, archived at https://perma.cc/8T84-DRR5.