With a very significant number of South Africans having left the country over the years, I find myself ever more frequently being asked to advise on citizenship and residency issues facing those living abroad. Sadly many of the enquiries flow from the death of parents or grandparents left behind in South Africa. These are prompted by questions of exchange controls and how to have the local inheritances remitted abroad.
The issues are complex and circumstances may vary significantly from one person to the next. There are laws governing citizenship; laws dealing with residency for taxation; different laws dealing with exchange control residency; and a fourth set of laws dealing with the granting of permanent or temporary residency in the country. However, a common thread in all queries I have encountered so far is that none of the folk took professional advice on the local consequences of their departure before they left. As a result – many must now grapple with “Unintended Consequences“. In this short article [part of a series] I can only touch briefly on some of these: –
Citizenship / Residency: To begin with most folk confuse these two very different concepts. You can hold citizenship of a country without ever having resided in that country [citizenship by descent]; you can be a citizen of one country while residing permanently in another [citizens abroad] and in South Africa [as with many but not all other countries] you may even hold Dual Citizenship of this country and another – no matter where you happen to be residing. Citizenship of course gives you the right to reside and/or work in a country – but a country can just as easily give you those rights without granting you citizenship. You have to be a citizen of a country in order to hold a passport of that country – but you do not have to hold a passport of a country in order to be a citizen [the vast majority of South African Citizens will probably never hold a passport].
The unintended consequence? Few South African citizens living abroad seem to know that they can automatically lose their SA citizenship without realising it. Most folk leave South Africa to live abroad without emigrating as such, thinking that if they emigrated they might lose their citizenship rights [not true]. Those who do not have dual citizenship of another country often hope to acquire citizenship of their new country of residence after a period of time. However, if they acquire the citizenship or nationality of a country other than the Republic by some voluntary and formal act other than marriage – their South African Citizenship is automatically lost / cancelled … unless they applied in writing to Home Affairs to be entitled to retain their SA citizenship before applying for the foreign citizenship. Can this problem be fixed? Yes, the Citizenship Act does provide for making application to resume a lost right to citizenship … but it is only to be granted in the discretion of the Minister of Home Affairs who must be satisfied that the grounds for the loss or deprivation of his or her South African citizenship no longer exist or are of any consequence. So, the loss of citizenship is automatic – the ability to recover it far from it!
[next article … Tax Residency … Issues for emigrants / expats …].
John Wallace