To the reader. The below is meant for those who now find themselves (unexpectedly) to be dual Dutch-SA citizens/nationals. However, some of these FAQs may apply to other nationalities/countries as well. Also see our news on the court decision. Each FAQ answer is based on the information at the time of publishing the FAQ. Some answers may thus become incomplete or even outdated as things develop.
FAQs
I am now Dutch and again South African but live outside the European Union, does this affect me?
Yes, according to Dutch law you are now at risk of losing your Dutch nationality in accordance with the 13-Year Clock version 1. Worse, because the South African court made this a retrospective repair as if you always stayed South African, the Dutch officials could argue that you lost your Dutch nationality earlier if you were already some time resident outside the EU. This in accordance to possibly the previous versions of the 10-Year Clocks. However, if that is being argued then this can be objected to, and ultimately appealed to in court. This is a complex situation and could result in the Dutch Supreme Court having to create a verdict that could result in a change to the Dutch law.
Will there be an Opt Out option?
Congratulations, but there can not be a real Opt Out option, with the verdict the court has already decided and everyone affected is now again South African. For those who have a nationality of a country that does not allow dual nationality/citizenship at all this can be problematic. In worst case scenario resulting in the immediate loss of that other nationality. For those of a country that is very difficult about dual nationality (like the Netherlands) it could be problematic as well, but can likely be resolved and result in dual nationality/citizenship. Any Opt Out option would likely be for the person to voluntarily renounce the South African citizenship in accordance to the Citizenship Act chapter 3 Section 7 Renunciation of citizenship. Remember that nationality/citizenship is a status and not just a piece of paper following a procedure. You are South African (with or without passport, ID, etc). Any Opt Out system would likely be a (quick) procedure of Renunciation. However, you want to be careful with that because if the other country’s law already resulted in automatic loss of that nationality then this could inadvertently result in (temporary) statelessness. So thread carefully.
How will this impact my kids born after I lost my SA citizenship?
According to the SA Citizenship Act:
“Citizenship by birth
(1) Any person—
… …
(b) 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.”
As the SA Constitutional Court decided that the repair of citizenship/nationality is retrospective as if the law never existed that means that you were legally a South African at the time of the birth of your children, and as such they were born South African. Officials may have a hard time accepting this retrospectivity to apply to children as well, but internationally there is legal presedence.
I read that I no longer need a Retention of Citizenship letter / Certificate of Exemption in Terms of Section 6(2), is that correct?
Indeed, there is no longer a need for a Retention Letter due to the court verdict. It is too soon for the South African authorities to have changed their processes on this, or advise otherwise on this. Their reply is that they have no instructions yet to stop issuing Retention Letters. At this point in time there is also in South Africa a lot of confusion with respect to this. So, this is just my own opinion and I am not a South African lawyer. I do follow the principles of law with my opinion, and am reasonably familiar with the South African citizenship law/act and the court’s decision. It is my opinion that with the recent constitutional court case there is no longer a need for a Retention Letter. Thus, you can save on the expense of that. It is still very new and thus the information flow from DHA etc is still not updated yet.
In addition, a Retention Letter was never required by the Dutch officials. And thus there is/was no need to legalise it with an Apostille. Until the court decision you did need the letter, but that was for yourself and not the Dutch authorities. Some Dutch municipality (gemeente) staff are/were under the impression that this is/was needed for them. However, they are incorrect about that. Furthermore, the Retention Letter was for you necessary to stop the automated loss according to section 6(1)(a) of the South African Citizenship Act 88 of 1995. The court stated that this loss is invalid and thus there is no more need for the letter, see the court order in our news on this.
This is the text to automatic loss under section 6(1)(a):
“6. Loss of citizenship
(1) Subject to the provisions of subsection (2), a South African citizen shall cease to be a South African citizen if—
(a) he or she, whilst not being a minor, by some voluntary and formal act other than marriage, acquires the citizenship or nationality of a country other than the Republic; “
Thus section 6(1)(a) organised the automatic loss. And this is the law relating to the Retention Letter under subsection 6(2):
“(2) Any person referred to in subsection (1) may, prior to his or her loss of South African citizenship in terms of this section, apply to the Minister to retain his or her South African citizenship, and the Minister may, if he or she deems it fit, order such retention.”
Again, as 6(1)(a) is now no longer in operation, no loss, subsection (2) is no longer applicable to you. Hope this explains sufficiently to you why you don’t need a Retention Letter anymore. Note that our colleagues in South Africa have informed us that Home Affairs is continuing issuing the Retention Letters for foreign naturalisations/options/registrations (until they are instructed otherwise). So you could decide to request one if you wanted to, I don’t see the need.
This is also explained in the (2nd) below video by South African MP Adrian Roos, who agrees with me, and stated: “in terms of the retention of citizenship So the so the way that a constitutional court ruling works like in this case is they struck down section 6(1)(a) So section 6(1)(a) and the the requirement for the retention is gone”. Although, it still exists in case of 6(1)(b) “he or she in terms of the laws of any other country also has the citizenship or nationality of that country, and serves in the armed forces of such country while that country is at war with the Republic.”
I previously stated at Dutch naturalisation that I would lose my SA citizenship but I secretly got a Retention Letter. I tricked the Dutch authorities. Can I now argue that I got my SA citizenship back?
You can try. But ultimately the Dutch authorities could find out and this could result in your Dutch nationality being stripped from you. You may still be asked to renounce the SA citizenship/nationality or else… This depends on a number of factors and differ per person/situation/background, but you are at high risk.
Is the letter of SA citizenship retention letter immediately unnecessary?
Yes
If we apply for Dutch naturalisation in the next few months do we have to go the renunciation route?
How quick the Dutch authorities will change their policy on this is unknown. At one point in time this is likely going to be requested of you. Unless you comply with an exception in Dutch law allowing dual nationality/citizenship.
Does this mean those who renounced their citizenship in the past actually become citizens of SA again?
No, this only affects those who lost their South African citizenship automatically through Loss of citizenship under section 6 paragraph 1a:
“(1) Subject to the provisions of subsection (2), a South African citizen shall cease to be a South African citizen if—
(a) he or she, whilst not being a minor, by some voluntary and formal act other than marriage, acquires the citizenship or nationality of a country other than the Republic;”
I am/was in the process of preparing to return to SA but have previously not had a Retention Letter and was considered no longer a SA citizen. For this I was just about to get a Determination letter to show that I am a former SA citizen. Do I still need to do this?
The court decision was only yesterday and Home Affairs will start a process for this. As we do not yet know what this will look like it is best to hold of with any Determination letter. The letter could ultimately perhaps become part of the new Home Affairs process to reconfirm that someone (retrospectively) did not lose his/her SA citizenship. But that is an unknown factor at this point in time. If you already started the process/paid then you may want to continue with the determination letter. This should however now have a different conclusion. Namely that in line with the court verdict you are deemed to be South African.
What happens to their Dutch citizenship where the Dutch requires one to renounce/lose unless there is an exception?
For those who already are Dutch they can likely now stay dual nationals. But there are risks.
For those who are in the naturalisation process now, or shortly, the Dutch officials will likely insist on renunciation.
Keep in mind the difference between (previous) automatic loss by law and voluntary renunciation.
The dutch rule is that you can not have dual citizenship. So it is either dutch or South African, unless you fall under the exception rule as per the IND website. So how does this work for someone who already has a Dutch citizenship/passport and had to give up their South African passport?
No, you are now legally a dual national. You could be at risk of losing the Dutch nationality in accordance to the 13-Year Clock version 1. And depending on when/how you became Dutch the Dutch authorities could become diffcult about this (not yet known). The Dutch law tries to prevent dual nationaltiy but there are situations where it is allowed. Because this is not due to your own doing, not your own choice, there is a legal provision that could allow you to stay a dual national. However, this also depends on how the Dutch officials and government are going to react. As for the South African side, you will be able to get your South African passport and ID card again. There will be an Online Portal for this through SA Home Affairs. What this will look like and what (documentation) they will need is not yet known. Keep in mind that a passport is merely a piece of paper and travel document showing your nationality/citizenship. Citizenship/nationality is a status, it is who you legally are (even if no documentation). Also note that the IND website is not complete on all circumstances and the full law, and on this subject with respect to SA now also already outdated.
I am South African and was just about to become Dutch through one of the Options. Not naturalisation. Do I still need an SA Retention of Citizenship letter?
No, as there is no longer any automatic loss, and as the Dutch law allows dual nationality for all but one of the Options, you do not need a Retention Letter anymore. The Dutch Option procedure (and law) does not require a Retention Letter, this was previously only needed for SA law.
I am unsure regarding the impact of this ruling when going back to SA for holiday/visiting when you are now a Dutch national while still holding a valid SA passport and did not renounce your SA citizenship formally when you became Dutch via naturalization (I assumed the automatic loss of it).
Since you are now considered to be a dual citizen (but no retention letter obtained) my question is:
What passport do you use to exit NL and enter SA when traveling back for holiday?
You are thus in a bit of limbo and in between situation. The loss was initially indeed automatic and thus you had no more right to a SA passport or the use of it. The SA authorities however did not yet know this (no Determination of Citizenship letter requested yet). Therefore for their records you seemed to still have been South African. Now the court has made this actually the case. Although you could use your South African passport again, it is good to go through the anounced Home Office Portal (once it is available) to get this cleared up. When travelling now/soon I suggest you do use your SA passport to enter SA. This because it is indeed in South Africa a legal requirement that South Africans use their South African passports to enter and exit the country. This means you are supposed to switch passports in between countries, which is the international standard (see my video on this).
I am scared of passport control because have heard lately SA border control insisted that people should enter SA on their SA passports, whereas my understanding was to only use your NL passport when you were previously considered to have lost your SA citizenship??
See answer directly above!
You are incorrect. The ruling only retroactively affects those who already formally received notice of having lost their citizenship. They then have to choice to have their citizenship reinstated (we’re expecting the portal to be up in about a month). … Those who simply didn’t apply for retention but have never submitted an determination of citizenship would still have their citizenship in place anyway but now wouldn’t lose it and would have to formally renounce if they choose to.
No, there is no choice as the court has just declared that they deemed not to have lost their citizenship. Just read the verdict and consider the following. Nationality/citizenship is a status. For example, when you are born you have the nationality through your parents. Even if no birth certificate or passport was organised. You were South African from birth through your parent(s), jus sanguinis. The article in law “section 6(1)(a)” affected the status of people automatically. It does not matter that the person did, or did not, request a Determination, or advised the authorities of the other nationality or loss. Loss was automatic and direct by law upon foreign naturalisation/registration/option. That Home Affairs does not have updated records is precisely because the loss was automatic by law and thus seperate from any bureacratic process. Very similar to the Dutch nationality law. The authorities can thus not know who is, and who isn’t, a former or now reinstated South African citizen. Therefore they need to go through the process of this anounced Portal. It is then up to the individual to evidence that they are reinstated South Africans so that they can get new or reinstated ID numbers, passports, etc. We do not know how the portal and procedures will work, and if someone who hasn’t earlier advised of the loss will need to use the portal or can continue to use their passports etc. (which would be advisable to Home Affairs).
–> In addition, this incorrect assumption, and possibly also by some officials, that the law and verdict are not automatic and direct creates a problem for the Dutch-South Africans. Because Dutch law is very restrictive on (does allow somewhat) dual nationality. Those people who are now suddenly dual nationals will be treated as such by the Dutch authorities. And this basically means that in accordance to Dutch law they can loose their Dutch nationality after 13 years of living outside the EU. Many of these live in the UK by the way, now outside the EU. Doesn’t matter if they did not use the Portal or get a South African passport etc. Although this loss is preventable and in such situation where most will renew their Dutch passports I suspect only a few would fall victim to this. But one is in my opinion one too many. Especially if this is based on misunderstandings and incorrect assumptions.
Additionally, if anyone is still in doubt if they got their citizenship back or not. This is explained in this video by South African MP Adrian Roos, who agrees with me, and stated this repeatedly. For example:
“What the court said is that your citizenship is immediately restored but what we’re dealing with now is the administrative process”.
How will this Portal work? What should I do?
DA (who brought they case to court) advised me they will ask their questions on this to the concerned officals. They advised me that Home Affairs so far has stated:
“To ensure compliance, Home Affairs will consider the implications of the judgement for legislative amendments, if any. And, in line with our vision for digital transformation, work has now commenced to build a dedicated online portal where any person who believes they were adversely effected by the unconstitutional provision can lodge an online case to confirm their citizenship reinstatement from anywhere in the world.”
Home Affairs merely states “to confirm their citizenship reinstatement” (by the court). As such it is not exactly clear what will be needed. But likely you need to evidence that you;
1) were once South African (birth certificate, SA naturalisation certificate, old passport or ID card copy, SA citizenship determination letter);
2) lost your South African citizenship automatically and immediately by operation of law due to Section 6(1)(a) of the law/act (foreign naturalisation/registration/option certificate, SA citizenship determination letter, foreign passport).
–> Those that did not (yet) report their foreign naturalisation and have not been noticed on this by the SA authorities (Home Affairs) are in a slightly more challenging situation and it depends what the policy/procedure will be for them. It could be very easy, Home Affairs continuing recognising them as SA citizens (my advice), or they may be asked to go through a similar process because legally (by law) they were (for a period) affected. Home Affairs and the minister will make it themselves easier by letting this slide.
I am in the proces of Dutch naturalisation, already approved, awaiting the oath/naturalisation ceremony. How does this affect me? Do I need to follow the SA Determination process in SA?
You are compared to others in the most challenging situation, depending on some dates and circumstances. I can not advice on this now. But you probably need legal advice. For example if (due time) you are asked to renounce your nationality. Where I would argue that dual nationality may be possible. In this case FAQs and news is not sufficient for you. Best to get legal advise from me or my colleague now, in order to be prepared and not make any mistakes going forward. No, the determination proces is in your case not something to do now. Depending on SA policy over the next few weeks/months you may not need to do this at all. Again, this can be challenging territory and I suggest you seek legal advice.