To: The Chief Director: Strategy and Institutional Performance
Via email: whitepaper@dha.gov.za
Date: 15 February 2026

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SUBMISSION ON THE DRAFT REVISED WHITE PAPER ON CITIZENSHIP, IMMIGRATION AND REFUGEE PROTECTION

 

1. INTRODUCTION

 

This submission is grounded in the principle that reforms must first protect South African citizens—both those residing in the Republic and the estimated more than one million citizens living abroad, many of whom may return in the short to medium term or consider future return. Reforms must ensure that their rights, and those of their spouses and children, are protected.

 

I submit these comments as a South African citizen with long-standing engagement in citizenship and immigration matters, including initiating the campaign that led to the Constitutional Court ruling on unlawful loss of South African citizenship, and as a member of the National Dialogue Steering Committee under the immigration portfolio and the diaspora.

 

2. CONSTITUTIONAL AND LEGAL FRAMEWORK

All proposals must comply with the Constitution of the Republic of South Africa, 1996, including:

• Section 3 (Citizenship)

• Section 7(2) (State obligation to respect, protect, promote and fulfil rights)

• Section 9 (Equality)

• Section 10 (Human dignity)

• Section 21 (Freedom of movement and right to enter/remain)

• Section 28 (Children’s rights)

• Section 33 (Lawful, reasonable, and procedurally fair administrative action)

International obligations under the 1951 Refugee Convention, OAU Refugee Convention, Convention on the Rights of the Child (CRC), ICCPR, and ICESCR also apply, requiring protection against statelessness, preservation of family unity, and access to basic services.

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3. POSITIVE POLICY DIRECTIONS

The Draft White Paper is welcomed for:

• Creating policy coherence across citizenship, immigration, and refugee protection

• Enhancing civil registration integrity

• Addressing economic migration and skills shortages

• Confronting systemic fraud and abuse

• Introducing non-economic pathways to citizenship, the Citizenship Advisory Panel, universal birth and death registration, and the Intelligent Population Register

These objectives are legitimate; success depends on constitutionally compliant design and administratively realistic implementation.

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4. ROSA – REGISTRATION OF SOUTH AFRICANS ABROAD

Re-establishing ROSA is crucial to protect citizens abroad, as seen during pandemic repatriation, the 2022 Ukraine evacuation, and individual cases of crime, trauma or death abroad.

ROSA enables timely response by DIRCO and BMA, improves data for emergency repatriation, and reduces reliance on diaspora-led ad hoc interventions.

Recommendations:

• Publicize ROSA registration via ports, airlines, and online platforms

• Train Border Management Authority and mission staff in emergency response using ROSA data

• Integrate ROSA with digital citizen services for timely alerts and support

• Build trust with the diaspora community and those in SA travelling abroad for short periods

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5. CITIZENSHIP POLICY CONCERNS

Naturalised Citizens and Minors Affected by Unlawful Loss of Citizenship

• Amend the right for naturalised citizens who lost citizenship due to section 6(1)(a) to be eligible for reinstatement as the discrepancy of eligibility between naturalised or SA born citizens affected is unfair and unjust.

• Clarify that minors and descendants of both SA born and naturalised citizens whose citizenship was unlawfully lost are entitled to restoration.

• Clarify that children (whether now minors or majors) born before the SA born or naturalised citizen parent’s citizenship was unlawfully lost and who were never registered as citizens, or who were born abroad and registered thus automatically deemed to have lost citizenship when the parent lost citizenship, are entitled to apply for citizenship or reinstatement by birth or by descent, regardless of whether or not the parent opts for reinstatement of citizenship.

• Clarify that children (whether now minors or majors) born after the SA born or naturalised citizen parent’s citizenship was unlawfully lost are eligible to apply for citizenship by birth due to the court ruling deeming the parent as if they have never lost citizenship, thus the parent would have been deemed to be a citizen at the time of that child’s birth rendering them eligible for citizenship, also whether or not the parent opts for reinstatement of citizenship.

 

6. RENUNCIATION OF CITIZENSHIP

The renunciation of South African citizenship remains administratively slow and procedurally unclear, particularly for citizens residing abroad and for those employed in foreign government security, defence, or regulated public-sector roles, where dual citizenship is prohibited or materially restrictive.

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A further category of affected persons includes citizens who were misinformed or insufficiently informed by previous administrations regarding the automatic loss of South African citizenship upon the acquisition of a foreign nationality. Many such individuals were unaware of the administrative requirement to formally notify the Department of Home Affairs (DHA) and are only now discovering that they have remained recorded as South African citizens on the National Population Register (NPR), despite never intending to retain citizenship. These individuals now face complex and protracted renunciation processes, often decades after the relevant events.

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This situation is compounded where such persons wish to travel to South Africa while renunciation is pending. They are advised that they remain subject to South African law and are expected to enter and exit the Republic on a valid South African passport, creating confusion and anxiety in light of section 26B of the South African Citizenship Act, which criminalises certain conduct relating to the use of foreign passports by South African citizens. The lack of clear transitional guidance exposes individuals to perceived legal risk and deters lawful travel.

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These challenges raise concerns under section 33 of the Constitution (lawful, reasonable and procedurally fair administrative action), as well as section 20 (citizenship rights). It is therefore recommended that the Department introduce a secure, digital renunciation platform for citizens abroad, together with clear policy guidance addressing legacy misinformation cases and travel status during pending renunciation. Integration with the population register, automatic acknowledgements, application tracking, and defined service standards would reduce legal uncertainty and restore administrative fairness.

 

7. RIGHT TO AND RETENTION OF PERMANENT RESIDENCY

Clarify whether renunciation or section 6(1)(a) loss affects PR rights, particularly for citizens abroad who cannot return every three years.

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8. IMMIGRATION POLICY AND ECONOMIC COHERENCE

Immigration policy must be aligned with broader economic and development objectives to ensure that migration functions as a strategic enabler of growth, rather than a stand-alone regulatory regime. While skilled and critical-skills visa pathways are essential to addressing immediate labour market shortages, they should be complemented by targeted measures to incentivise the return of South African citizens abroad, particularly in sectors experiencing structural skills deficits.

 

South Africa’s diaspora represents a significant reservoir of human capital, professional expertise, and international networks developed at no cost to the state. Encouraging skills repatriation can support economic stabilisation, productivity growth, and institutional strengthening, while mitigating the long-term effects of skills emigration. Immigration policy should therefore operate in tandem with return-migration strategies that reduce administrative barriers, recognise foreign qualifications and experience, and provide predictable residence and citizenship outcomes for returning nationals and their immediate families.

 

To achieve this, interdepartmental coordination is essential. Government-wide campaigns, led jointly by the Department of Home Affairs, the Department of Employment and Labour, the Department of Trade, Industry and Competition, and DIRCO, should actively promote diaspora return and reintegration opportunities. These initiatives should be aligned with the National Development Plan 2030, sectoral master plans, and priority economic reform programmes, ensuring that return migration supports identified national skills needs rather than ad hoc inflows. A coherent approach linking immigration, labour, and economic policy would strengthen policy credibility, maximise developmental impact, and position migration as a contributor to inclusive growth and long-term national resilience.

 

9. ADMINISTRATIVE CAPACITY AND IMPLEMENTATION RISK

The successful implementation of the proposed immigration and citizenship reforms is contingent on the institutional capacity and operational readiness of the Department of Home Affairs (DHA). At present, the Department is operating at approximately 30% functional capacity, while simultaneously undertaking critical interventions to address systemic corruption, skills shortages, and legacy governance failures. These constraints materially limit the Department’s ability to absorb complex new policy and legislative reforms without significant risk.

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Introducing expanded visa categories, new adjudication frameworks, enhanced enforcement mechanisms, and additional oversight structures without a fully funded, sequenced, and enforceable implementation plan risks exacerbating existing backlogs, increasing inconsistent decision-making, and driving further litigation. Experience has shown that reforms introduced in advance of administrative readiness frequently result in procedural unfairness, opaque decision-making, and prolonged delays, exposing the state to constitutional challenge.

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Of particular concern is compliance with section 33 of the Constitution, which guarantees lawful, reasonable, and procedurally fair administrative action. Where capacity constraints lead to delayed decisions, inaccessible appeal mechanisms, or the failure to implement lawful outcomes, the Department faces heightened exposure to judicial review, adverse cost orders, and remedial supervision by the courts.

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It is therefore essential that all reforms be accompanied by:

• a realistic assessment of institutional capacity,

• ring-fenced funding for implementation and systems integration,

• phased roll-out linked to measurable readiness indicators, and

• strengthened internal accountability and performance monitoring.

 

Without these safeguards, even well-designed reforms risk undermining administrative justice, eroding public confidence, and entrenching the very inefficiencies they seek to address.

 

10. BIRTH REGISTRATION, DNA TESTING AND CHILDREN’S RIGHTS

Universal and timely birth registration is a foundational component of identity management, child protection, and access to basic rights. The expansion of facility-based birth registration to all public and private maternity sites should be prioritised to ensure that every child born in South Africa at one of these facilities is registered at birth, reducing the risk of statelessness, trafficking, and long-term exclusion from services.

 

Where DNA testing is required to establish parentage, it must be applied only where strictly necessary, in a gender-neutral manner, and with due regard to dignity, privacy, and family life. Requirements that disproportionately burden mothers, single parents, or non-nationals risk unfair discrimination and are inconsistent with constitutional equality guarantees. Where DNA testing is required by the State, it should be State-funded, as unaffordable costs create indirect barriers to birth registration and legal recognition.

 

A child’s access to identity documents, education, healthcare, and social assistance must not be made contingent on costly or delayed verification processes beyond the child’s control. The Constitution recognises the best interests of the child as paramount, and prolonged undocumented status undermines this principle and exposes children to lifelong disadvantage.

Birth registration systems must therefore prioritise the child’s legal identity irrespective of parental status, ensure that verification processes do not cause unreasonable delay, and prevent administrative requirements from effectively denying access to constitutionally protected rights. Strengthening systems in this manner promotes legal certainty, child protection, and social inclusion, consistent with constitutional obligations and international best practice.

 

11. THIRD-PARTY HOME AFFAIRS AGENTS

The growing reliance on third-party agents to facilitate Home Affairs services—particularly for applicants outside South Africa—poses significant financial, legal, and governance risks, especially for diaspora communities with limited access to in-person Department of Home Affairs (DHA) services. Unregulated agents often present themselves online as official or semi-official intermediaries, exposing applicants to misinformation, excessive fees, fraud, and confusion regarding their authority.

 

The absence of a statutory licensing and regulatory framework has enabled informal and unscrupulous operators to proliferate, undermining confidence in DHA processes and increasing risks of data compromise, procedural errors, and exploitation of vulnerable applicants. These risks are compounded by fragmented consular services and inconsistent official communication, which can drive demand for informal intermediaries.

 

Regulatory intervention is required to introduce statutory licensing of all third-party agents; define permitted services, transparent fee structures, and ethical obligations; impose penalties for fraud, impersonation, or misrepresentation; and prohibit outsourcing of core sovereign functions where constitutional safeguards cannot be maintained.

 

To promote transparency, the Department should maintain a publicly accessible online database identifying licensed agents, their authorisation scope, and compliance status, integrated into DHA and consular platforms. Effective oversight should also include formal complaint and redress mechanisms, as well as structured civil society and diaspora engagement. Without decisive regulation, unregulated agents will continue to act as de facto gatekeepers, entrenching unequal access, increasing litigation risk, continuation of backdoor operations via fraudulent DHA staff members, and eroding trust in South Africa’s identity and immigration systems.

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12. CONSULAR SERVICES, VFS AND ACCESS ABROAD

South African citizens and permanent residents who reside abroad face significant access barriers due to limited access via foreign missions, inconsistent consular services, the removal of mail-in options, and fragmented processes across VFS and other outsourced providers. These shortcomings increase costs, lengthen processing times, and place a disproportionate burden on individuals who rely exclusively on foreign missions for essential Home Affairs services.

 

The absence of harmonised procedures and service standards has led to divergent document requirements, appointment systems, and processing practices, undermining predictability and fairness. Limited appointment availability, poor communication, and the lack of application tracking often compel applicants to rely on informal intermediaries, increasing exposure to fraud and procedural errors.

 

These weaknesses are especially critical in emergency situations—such as medical crises, arrests, deportation risk, or sudden document loss—where delays or inconsistent responses can have serious personal, legal, and financial consequences. Limited digital integration further restricts consular capacity to verify status, escalate urgent cases, or coordinate effectively with the Department of Home Affairs.

 

To address these challenges, the Department should:

• Digitise and harmonise consular services with clear SOPs, tracking systems, and defined timelines;

• Establish uniform global service standards across missions and providers;

• Strengthen staff training and ensure all missions have a working and published mobile phone number for 24/7 diaspora needs and emergencies;

• Urgently roll out the capacity for smartcard ID’s abroad as those abroad who previously were issued smartcards are unable to apply for green barcoded ID books;

• Reduce fragmentation of document application locations including allowing passport applications to be made with ID or other applications simultaneously via foreign missions, rather than now separating them between mission and VFS causing severe delays in obtaining vital documents where a person must first obtain a birth certificate and/or ID at a mission and then only obtain a passport at a VFS office resulting in a year or more delay.

• Introduce oversight mechanisms with diaspora civil society participation;

• Integrate consular functions with ROSA and other digital platforms.

 

Without these reforms, the current model risks perpetuating unequal access, procedural unfairness, reliance on intermediaries, and declining public confidence in the State’s ability to support citizens abroad.

 

13. OVERSTAY BANS AND APPEALS

The current overstay ban regime is procedurally defective, inconsistently applied, and constitutionally vulnerable. Systemic failures include inadequate or unclear appeal instructions, non-functional or unmonitored email systems, the failure to lift expired bans automatically, and a lack of effective integration between the Department of Home Affairs and the Border Management Authority (BMA). These deficiencies result in arbitrary outcomes and prolonged restrictions on movement, often without lawful justification.

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The absence of a reliable, accessible appeal mechanism has led to situations where affected individuals are unable to challenge erroneous bans, receive no confirmation of submissions, where appeal emails including documents are blocked due to IT restrictions yet the applicant is not made aware of this, or unable to obtain timely decisions. This has significant implications for section 21 of the Constitution (freedom of movement) and section 33 (lawful, reasonable and procedurally fair administrative action), particularly where bans persist beyond their lawful duration or are imposed in error.

 

The practical consequences of these failures are illustrated in Rodda v Minister of Home Affairs (Western Cape High Court, Case No. 2025-072624), where a dual South African–UK citizen was unbeknownst erroneously issued with an overstay ban and denied effective assistance by the Department. As a result, the applicant was unlawfully stranded abroad for approximately six months, suffering financial loss, personal hardship, and constitutional infringement, ultimately necessitating court and civil society intervention.

 

To restore legality, predictability, and fairness, the following reforms are required:

• the establishment of a digital overstay appeal portal with automatic acknowledgement of receipt and status tracking;

• full integration of DHA and BMA information systems to prevent duplication, delay, and contradictory enforcement;

• automatic lifting of overstay bans upon expiry, without requiring further manual administrative intervention; and

• the introduction of graduated or sliding-scale penalties for inadvertent or minimal overstays, with exemptions for children and other vulnerable persons.

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Without these measures, the overstay regime will continue to operate in an arbitrary and inconsistent manner, affecting not only foreign nationals but also South African citizens abroad, and exposing the state to avoidable litigation, adverse cost orders, and constitutional scrutiny.

 

14. SKILLED WORKER AND EMPLOYMENT VISAS
The consolidation of existing skills visas into a single Skilled Worker visa is a positive step toward administrative simplicity and policy coherence. However, without adequate safeguards, the system risks labour market distortion, worker exploitation, and downward pressure on wages, undermining the constitutional right to fair labour practices (Section 23) and international labour standards. To align with ILO principles and international best practice, the framework should include sector-specific wage floors linked to local labour conditions, strengthened labour inspection capacity, and protections for dependents and spouses, including work rights and access to services. Transparent publication of Points-Based System (PBS) scoring criteria is essential to prevent arbitrariness and ensure administrative justice under Section 33 of the Constitution. International graduates from South African institutions should also have a clear, streamlined pathway into skilled employment to retain scarce skills and maximise the country’s investment in education.

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15. POINTS-BASED SYSTEM (PBS) IMPLEMENTATION

The introduction of a PBS can support strategic migration management, but if implemented only through regulations or policy guidelines, it risks opacity and inconsistent application. To ensure legality, predictability, and fairness in line with the rule of law and the Promotion of Administrative Justice Act (PAJA), core PBS criteria, weighting principles, and appeal rights should be enshrined in primary legislation. At the same time, the system must retain sufficient flexibility to respond to changing labour market needs, regional development priorities, entrepreneurship, innovation, and state-sponsored recruitment programmes. International best practice indicates that PBS systems function most effectively when regularly reviewed through transparent labour market assessments and when applicants have access to clear explanations and independent review mechanisms.

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16. PERMANENT RESIDENCE (PR) AND MERIT-BASED PATHWAYS

Merit-based PR pathways and self-sponsored routes can attract valuable skills and investment, but quota systems or discretionary allocations risk uncertainty, perceptions of arbitrariness, and potential inequality. In line with Section 9 (equality) and Section 33 (just administrative action), PR allocation criteria, quotas, processing timelines, and selection mechanisms must be transparent, predictable, and subject to appeal. Policies should prioritise sustained contribution and long-term integration rather than short-term or transactional “fly-in” residence schemes that do not support social cohesion or economic stability. International best practice emphasises continuity between temporary residence, economic participation, and permanent status to encourage long-term commitment.

 

17. HUMAN TRAFFICKING AND SMUGGLING

Policy responses to trafficking and smuggling must clearly distinguish between victims and perpetrators, consistent with the Palermo Protocol and South Africa’s constitutional commitment to dignity, security, and freedom from exploitation (Sections 10 and 12). Victims of trafficking should receive residence permits as a form of humanitarian protection rather than being treated within ordinary migration enforcement systems. Cooperation with law enforcement should be encouraged but must not be a mandatory condition for protection, as this may expose victims to risk or re-traumatisation. Smuggled migrants should not face automatic criminalisation for their irregular entry, and accessible appeal mechanisms must be available in all related immigration decisions.

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18. REFUGEE PROTECTION

South Africa’s continued adherence to the 1951 Refugee Convention, the 1967 Protocol, and the 1969 OAU Convention is essential to its constitutional and international obligations. The principle of non-refoulement must apply in all circumstances. While administrative efficiency is important, access to asylum procedures must remain available within the country, and any port-of-entry or digital processing systems should be optional, inclusive, and supported by interpretation, legal assistance, and contingency measures for technical failures. Restricting access through geographic or technological barriers would risk indirect refoulement and undermine the right to just administrative action.

 

19. FIRST SAFE COUNTRY PRINCIPLE

The application of a first safe country rule raises significant protection risks if implemented without strict safeguards. International law requires that transfers occur only where the receiving country provides effective access to asylum, guarantees against refoulement, and access to basic rights and services. Each case must be individually assessed, and applicants must have access to a suspensive appeal before any transfer is carried out. Blanket or automatic application of this principle would be inconsistent with international refugee law and the constitutional requirement for individualized, lawful, and reasonable administrative decision-making.

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20. CHILDREN, STATELESSNESS, AND FAMILY UNITY

All policies affecting children must prioritise the best interests of the child as required by Section 28 of the Constitution and the Convention on the Rights of the Child. Statelessness determination procedures should be child-centred, expedited, and supported by active state efforts to verify nationality rather than placing the burden solely on families. Interim documentation must guarantee access to education, healthcare, and social protection. Family unity should be preserved across immigration, refugee, and citizenship processes, and separation should occur only where strictly necessary and lawful. International standards emphasise that preventing childhood statelessness is both a humanitarian and governance priority.

 

21. UNIVERSAL CIVIL REGISTRATION AND LEGAL IDENTITY

Universal birth and death registration is foundational to legal identity and access to rights. To comply with the Constitution and international human rights standards, registration must be accessible, non-discriminatory, and free regardless of parental immigration status. Civil registration must be strictly separated from immigration enforcement to avoid deterring vulnerable populations from registering vital events. Any DNA or paternity testing requirements should be used only where strictly necessary, applied in a gender-neutral manner, and funded by the state where families cannot afford the costs.

 

22. DIGITAL TRANSFORMATION, BIOMETRICS, AND PRIVACY

The transition to a digital-first system and the Intelligent Population Register offers important efficiency benefits but creates significant privacy and data protection risks. All biometric collection and data sharing must comply with POPIA, Section 14 of the Constitution, and international principles of necessity, proportionality, purpose limitation, and security. Independent oversight, clear data retention limits, and transparency regarding data use are essential. To prevent digital exclusion, offline, mobile, and assisted service channels must remain available, particularly for rural populations, older persons, persons with disabilities, including South Africans living abroad.

 

23. IMMIGRATION ADVISORY BOARD AND OVERSIGHT STRUCTURES

Effective governance requires independent oversight and transparent policy review. The proposed advisory structures should be established in statute, required to publish regular reports, and include representation from labour, business, academia, and civil society. Parliamentary oversight mechanisms should be strengthened to review migration targets, PBS performance, and the operation of digital systems such as ROSA and consular platforms. Independent monitoring of enforcement practices, data systems, and service delivery will enhance accountability, public trust, and alignment with constitutional principles of openness and responsiveness.

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24. CONCLUSION

The Draft Revised White Paper represents an important opportunity to modernise South Africa’s citizenship, immigration, and refugee framework. For South Africans abroad and their families, reforms determine whether they can return safely, maintain rights, and contribute to society.

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Recommendations for success:

1. Prioritize citizens including diaspora citizens, children, and family unity

2. Embed constitutional and international safeguards

3. Ensure procedural fairness, transparency, and appealable digital processes

4. Strengthen administrative capacity and realistic implementation

5. Establish independent oversight of consular services, ROSA registration, and enforcement

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With these measures, the White Paper can restore integrity, attract skills, enhance service delivery, and maintain South Africa’s international credibility.

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Yours sincerely,

Hayley Reichert

Founder of www.operationwatershed.com - civil society initiative for South Africans abroad.