Two Major Shifts of 2025-2026: Citizenship No Longer Automatically Lost, and the Asylum Threshold Provisions Collapse

Two Major Shifts of 2025–2026: Citizenship No Longer Automatically Lost, and the Asylum Threshold Provisions Collapse

Democratic Alliance v Minister of Home Affairs [2025] ZACC 8 | Scalabrini [2026] ZACC 30 | Irankunda [2026] ZACC 18 — the closing instalment: three judgments across two years, with a review of all twelve instalments.

This series of case notes reaches its final instalment just as South African immigration law has undergone its two most significant changes of the past two years.

On 6 May 2025 the Constitutional Court declared s 6(1)(a) of the Citizenship Act unconstitutional — the provision under which a South African citizen who voluntarily acquired the nationality of another country without prior permission automatically lost South African citizenship. The Court made the declaration of invalidity retrospective to 6 October 1995: anyone who lost citizenship under it is deemed never to have lost it.

On 7 July 2026 the same Court struck down the entire set of "first explain why you were late, then we will talk about asylum" threshold provisions in the Refugees Act. One of the reasons was the very sentence discussed in instalment 02 of this series: unguided discretionary power.

Part 1 — Shift One: Citizenship No Longer Automatically Lost

Case file

§ South African Citizenship Act 88 of 1995, s 6(1)(a) (declared unconstitutional)

A South African citizen who, after attaining the age of eighteen, by some voluntary and formal act acquires the citizenship of another country while outside the Republic, ceases to be a South African citizen — unless he or she first obtains the Minister's permission to retain South African citizenship.

This provision operated for thirty years. Its effect was that a South African citizen who naturalised abroad without first applying for permission lost South African citizenship at that very moment — with no notice and no decision required — and many discovered it only years later, when they returned home to apply for a passport.

The rules this case established

1. It infringes the right to citizenship under section 20 of the Constitution, and serves no legitimate government purpose. Section 20: "No citizen may be deprived of citizenship." The Court held that the automatic-deprivation mechanism in s 6(1)(a) is arbitrary, and the Department could point to no legitimate government purpose the provision served.
2. The ministerial discretion in s 6(2) has no standard whatsoever. That subsection permits the Minister to allow retention of South African citizenship, but prescribes no criterion of judgment. This is precisely the "guidance" problem of Dawood (instalment 02) — a standardless discretion cannot rescue an arbitrary deprivation provision.
3. Retrospective to 6 October 1995; deemed never to have lost citizenship. The Court declined to suspend, and declared the provision invalid from the date it came into force. Anyone who lost citizenship under it is deemed not to have lost their citizenship. This is an exceptionally rare retrospective reach in South African constitutional remedies.

⚠ How this affects Chinese clients

Two categories of person are directly affected:

1. Those who naturalised in South Africa and later acquired the nationality of a third country. For example, someone who naturalised in South Africa, then emigrated to Canada, Australia, Portugal and the like and naturalised there, would previously have lost South African citizenship automatically. Under this judgment, such persons are deemed never to have lost it.

2. Children of South African Chinese. Where a child's acquisition of South African citizenship by descent was knocked on by a parent's nationality having been treated as lost, the same claim may be reasserted.

But note carefully: this judgment deals only with citizenship under South African law. The acquisition, retention and loss of Chinese nationality is governed by Chinese law, and the two sets of rules do not dovetail automatically. Any specific arrangement involving dual nationality must be the subject of separate advice on Chinese law.

◆ What to do in practice

If you or a family member were told by Home Affairs that "you are no longer a South African citizen," or were refused a passport or identity document on the ground of s 6(1)(a), you may now invoke [2025] ZACC 8 to require Home Affairs to reprocess the matter.

Because the judgment is "deemed never to have lost," no fresh naturalisation process is legally required; rather, Home Affairs is required to confirm the existing status. Should Home Affairs delay or refuse, proceed by the routes discussed in instalments 03 and 04 of this series.

Part 2 — Shift Two: The Asylum Threshold Provisions Collapse

Case file

What was struck down was an entire mechanism: an asylum seeker who entered unlawfully, or who failed to report within the prescribed period, first had to explain to an immigration officer their "valid reasons", "good cause" or "compelling reasons", and only after passing that threshold would the asylum claim be considered on the merits.

The rules this case established

1. These are "threshold barriers" that block a determination on the merits. The Court's phrase was threshold barriers preventing merits-based determination. The applicant is stopped procedurally before ever being asked whether they truly face persecution.
2. Excluding an applicant before the merits are assessed violates the principle of non-refoulement. The non-refoulement principle in s 2 of the Refugees Act is absolute: no one may be returned to a place where they may face persecution. To exclude a person before the risk of persecution has been assessed is in direct conflict with this.
3. Vague standards plus unguided discretion. "Valid reasons," "good cause," "compelling reasons" — three phrases, all indeterminate in meaning, with no statutory criterion of judgment. This is the direct continuation of the Dawood principle: a statute authorising a limitation of constitutional rights must carry its own guidance.
4. Multiple, escalating standards that are internally contradictory. Three differently worded standards apply to the same matter, their relationship unclear, leaving the applicant unable to know to what degree they must prove their case.
5. Depriving access to the asylum process for procedural non-compliance alone. A child faces deportation for a parent's procedural default, without individual assessment.

This judgment brought to an end an entire contested line running since the 2017 Refugees Amendment Act. Before it, three Constitutional Court judgments — Ruta (2018), Abore (2021) and Ashebo (2023) — had all fought for space within the framework of this mechanism, confirming that "delay does not bar an application" and that "s 21(1B) is a procedural requirement, not a substantive exclusionary ground." Now the framework itself is gone.

Part 3 — But the Same Year Brought a Judgment in the Opposite Direction

Case file

In 2024 the Supreme Court of Appeal had held that, after an asylum application is finally rejected, the applicant may bring a fresh sur place application based on a change of circumstances in the home country, without first having to leave; and it ordered Home Affairs to receive the application within 5 working days and decide it within 21 working days.

In May 2026 the Constitutional Court overturned that judgment. The majority distinguished two situations:

◆ The dissent is worth recording

Nicholls AJ and Rogers J, in dissent (paras [121]–[197]), took the view that the Act may reasonably be interpreted to permit a subsequent application where there is a material change of circumstances; the majority created a lacuna in conflict with non-refoulement.

This dissent is material that may be invoked in future to press for legislation or to distinguish on the facts.

⚠ The timing is critical

Any legal opinion given before 12 May 2026 that relied on Irankunda (SCA) is no longer valid from that date. This is a point this series has stressed repeatedly: case law is time-stamped.

Part 4 — Looking Back Over Twelve Instalments

Setting this body of case law side by side reveals a clear main line — the South African courts' method of handling immigration cases can almost entirely be reduced to four questions.

The four questions of South African immigration litigation

• Question 1 — Does the statute authorising this decision provide guidance? Dawood (2000) → Nandutu (2019) → DA v Minister (2025, s 6(2) standardless) → Scalabrini (2026, three vague phrases). Twenty-six years, the same argumentative structure.
• Question 2 — Did the decision-maker genuinely consider, or merely "take note"? Lu (2025, lip service), A.K (2023, children treated as an afterthought), Ling (2022, material error of fact), Mushore (2022, extra-statutory requirements).
• Question 3 — Was the procedure followed correctly? Koyabe (duty to give reasons), Chen (interpretation), Rahim (place of detention), Jeebhai (warrant and notice), Mlambo (service), Mushore (delegation of authority).
• Question 4 — How long has it dragged on, and how much longer? De Saude (30 / 60 days), Ziaul (10 / 14 days), A.K (10 days), Ling (20 working days). And the Trencon four factors — when the court stops remitting and decides for itself.

The twelve instalments

This series cites more than forty South African court judgments in all, every one of which may be consulted on SAFLII (www.saflii.org). Four of them directly involve Chinese parties: Lu (2025), Chen (2014), Li (2012) and Weng (2011).

Part 5 — Some Gaps That Must Be Honestly Acknowledged

⚠ Here there is currently no case law to invoke

In the course of researching this series, we could not find any reported South African judgment on the following situations, among those most frequently encountered by Chinese parties:Judicial review of a s 15 business-visa refusal — not a single one;A substantive judgment on a s 30(1)(h) undesirable declaration — only interim-relief and V-listing procedural cases;A judgment on a s 21 corporate visa involving a Chinese employer;A judgment on the validity of a Chinese police clearance certificate or notarised / authenticated document;A judgment whose central issue is the accuracy of a Chinese translation.

These gaps are themselves meaningful information: they show that such disputes are either abandoned midway, or resolved by unreported High Court orders or settlement. In other words — in these areas, precedent is there to be made.

Case law has an easily overlooked feature: it is alive. A case one could cite in 2024 may already have been overturned by 2026; a single sentence from 2000 is still, twenty-six years on, being used to dismantle today's administrative decisions.

So what is truly worth remembering is not the conclusion of any one judgment, but the questions the court is asking.

This series ends here. If you have a concrete case in hand, you are welcome to make an appointment — in Chinese or in English.

Sources

• Democratic Alliance v Minister of Home Affairs and Another 2025 (4) SA 323 (CC); 2025 (7) BCLR 779 (CC); [2025] ZACC 8 (6 May 2025) (court below [2023] ZASCA 97; 2023 (6) SA 156 (SCA))
• Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others [2026] ZACC 30 (7 July 2026) (parallel citations pending; court below [2025] ZAWCHC 202; [2025] 3 All SA 827 (WCC))
• Director-General, Department of Home Affairs and Others v Irankunda and Another 2026 (4) SA 603 (CC); 2026 (7) BCLR 682 (CC); [2026] ZACC 18 (12 May 2026) (overturning [2024] ZASCA 87; 2024 (6) SA 376 (SCA))
• Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC); [2018] ZACC 52; Abore v Minister of Home Affairs 2022 (2) SA 321 (CC); [2021] ZACC 50; Ashebo v Minister of Home Affairs 2023 (5) SA 382 (CC); [2023] ZACC 16
• South African Citizenship Act 88 of 1995 ss 6(1)(a), 6(2); Refugees Act 130 of 1998 ss 2, 4(1)(f), 4(1)(h), 4(1)(i), 21(1B); Refugee Regulations, GN 1707 of 27 December 2019, regs 8(1)(c)(i), 8(2), 8(3), 8(4)
• Constitution of the Republic of South Africa, 1996, ss 20, 172(1)
• This judgment deals only with citizenship under South African law; matters of Chinese nationality are governed by Chinese law, and any specific arrangement involving dual nationality must be the subject of separate advice.

This article analyses judgments publicly published by South African courts, available in full on SAFLII (www.saflii.org); the parties' names appear on the face of the published judgments and are not client information of this firm. This is general legal information and academic discussion, does not constitute legal advice on any particular matter, and does not establish an attorney–client relationship. Case law may be overturned or distinguished by later decisions, and statutes may be amended; check the original text and the latest developments, or seek advice from a practising attorney on your own case, before relying on this. Verified as at 27 August 2026.

June Luna Immigration Attorneys Inc. — Cape Town, immigration and administrative law specialists. Visa refusal appeals (s 8(4) / s 8(6)); overstay and undesirable-person relief; detention and deportation; permanent residence and naturalisation; PAJA judicial review and mandamus.