Constitutional Court win paves the way for immigration progress

COMMENT

Immigration law expert Stefanie de Saude Darbandi, representing a family from the Democratic Republic of the Congo (DRC), has helped bring about a change in immigration law by taking the case to the high court and Constitutional Court. This welcome development secures a change in the regulations relating to citizenship by naturalisation, allowing foreigners to apply for citizenship after five years’ permanent residence.

Darbandi, representing the Mulowayi family from DRC, took their case to the Western Cape high court and then the Constitutional Court after their application for citizenship was rejected on the grounds that regulations stated they had to be resident in South Africa for 10 years before they could apply. She argued that regulations prescribing a 10-year period of residence before a foreigner can apply for citizenship were contrary to the Citizenship Act, which prescribes only a five-year period.

Darbandi applied to the Constitutional Court, effectively for confirmation of an order of the Western Cape high court, declaring regulation 3(2)(a) of the Regulations on the South African Citizenship Act, 1995 invalid and setting aside the regulation.

She explains that the regulations were not aligned with section 5(1)(c) of the Act, which states: “The Minister may, upon application in the prescribed manner, grant a certificate of naturalisation as a South African citizen to any foreigner who satisfies the Minister that (c) he or she is ordinarily resident in the Republic and that he or she has been so resident for a continuous period of not less than five years immediately preceding the date of his or her application.”

Darbandi says the Constitutional Court’s finding is good news for foreigners seeking South African citizenship, and removes one of the hurdles in the way of immigration. “There are encouraging signs of reform in South African immigration law and processes, and the department of home affairs appears to be supporting these positive developments,” she says.

However, more progress needs to be made if South Africa is to succeed in its efforts to attract up to 800 000 high-level foreign skills and large numbers of foreign investors to the country, Darbandi says.

“We can’t be a ‘closed border country’ if we want the economy to grow. While this Constitutional Court finding is a step in right direction, making the regulations less restrictive and South Africa more appealing to foreigners, all stakeholders need to work together to make visa and immigration regulations and processes less restrictive.”

Darbandi has long campaigned for uniform application of visa and immigration policies, and for a more open approach to immigration in general. As a founding member of a new Task Team for Immigration Reform, which is backed by Business Leaders South Africa, she aims to continue working to address shortcomings in the current system, which, she says, still forces too many people to suffer wrongful outcomes, delays and various injustices.

“Immigration has been found to have a measurable positive impact on GDP growth, yet our laws, and the inconsistent way in which regulations and policies are enforced, are closing our borders to foreign investors and skilled foreign workers who could both address our in-country skills gaps and support much-needed knowledge transfer,” Darbandi says.

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