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The Department of Home Affairs is rejecting applications for naturalisation, despite applicants meeting the requirements laid out by the South African Citizenship Act. Thousands of applicants are believed to be affected.
The Citizenship Act makes provision for people who have permanent SA residence permits and have been resident in the country for a period of five years, to apply for naturalisation.
However, the department introduced regulations that prescribe a period of 10 years and is rejecting applications that meet the criteria of the Act on the basis of these regulations.
Johan Lubbe, Managing Member of Immigration Boutique, says he estimates that tens of thousands of people have been affected. Lubbe’s clients who have been affected by the change in regulations are largely corporates. He says these people have had their hopes dashed and are being victimised.
Stefanie de Saude, owner of De Saude Attorneys, says while the regulations were introduced in 2012 and became effective in 2013, they contradict the Act and says this is unlawful. “Regulations are subordinate legislation. It means they can never be more restrictive than the enabling legislation which is the Act. If it is, it ultra vires the Act and unlawful and should be set aside.” The legal term ultra vires refers to something beyond one’s legal power or authority.
De Saude suggests that if the matter were to be taken to court, the regulations would likely be set aside.
Lubbe says that because the department can take up to three to four years to process some applications, some of the applications that have been rejected on the basis of the new regulations were actually submitted before the change in regulations and should therefore be approved.
A legal opinion was sent to the department on October 25 last year, stating that the regulations contradicted the Act, appealing to the department to set them aside. The opinion also states that no court would uphold the regulations.
Lubbe says to date he has not received a response. He says when he has challenged officials on the legality of the regulations, the response he receives is along the lines: “If you don’t like it go to court.”
Tourism Update tried several time to make contact with Home Affairs, however calls were unanswered and emailed not responded to.
Sourse: tourismupdate.co.za