The Constitution of Mauritius and the Citizenship Act 1968

The Mauritian citizenship law must be followed without any exception in order for someone to acquire and retain a certificate of Mauritian citizenship. Therefore the Constitution of Mauritius and the Citizenship Act 1968 set the law on how a person can acquire a Mauritian citizenship.

The constitution of Mauritius

The law concerning citizenship is provided in section 20-27 of the Mauritian Constitution. According to our Constitution, there are two principles imparting citizenship to a person. The Jus Soli and the Jus Sanguinis are those two principles which are widely accepted around the globe. In addition, the Mauritian Constitution also confers citizenship to persons who have married a Mauritian citizen and this is known as the Registration of Married Persons.

The Jus Soli Principle

The principle of Jus Soli is a right by which nationality or citizenship can be granted to anyone born on the territory of the related state. This principle is followed by many countries around the world and Mauritius is one of them. However, certain countries such as India and Malta have abolished the principle of Jus Soli.

The Mauritian Constitution clearly provides for the principle of Jus Soli under section 20(1) and section 22, these two sections are addressed to people who are born in Mauritius before and after 12 March 1968, that is the date where by Mauritius became an independent country. However, section 22 also provides for certain exception where it is clearly stated “that a person born in Mauritius shall not become a citizen of Mauritius if at the time of his birth:

1. Neither of his parents is a citizen of Mauritius; or
2. Either of his parents is an enemy alien and the birth occurs in a place then under occupation by the enemy” [1] .

According to the principle of Jus Soli, under the Mauritian law, any person born in Mauritius will be granted Mauritian citizenship unless the latter falls under the exception to this principle. Therefore, according to section 22 of the Mauritian Constitution this principle does not apply to child born in Mauritius having parents with foreign citizenship.

There are also cases where the child is born on a ship or in an aircraft. In order to determine the citizenship of that child in that particular case, section 3 the Convention on the Reduction of Statelessness 1961 clearly states that the child will be a citizen of the country in which the ship of the aircraft is registered.

“For the purpose of determining the obligations of Contracting States under this Convention, birth on a ship or in an aircraft shall be deemed to have taken place in the territory of the State whole flag the ship flies or in the territory of the State in which the aircraft is registered, as the case may be” [2] .

Mauritius also follow the same principle to grant citizenship to child born on ship or in an aircraft and this is clearly embodied in section 15 of the Civil Status Act 1982 and section 27(2) of the Mauritian Constitution.

The Jus Sanguinis Principle

The principle of Jus Sanguinis provides that a child’s citizenship at birth is the same as that of his natural parent. Therefore a person would become a citizen of Mauritius if his natural parent is or was a citizen of Mauritius as this is clearly provided by the Mauritian Constitution under section 23, “A person born outside Mauritius after 11 March 1968 shall become a citizen of Mauritius at the date of his birth if at that date either of his parents is a citizen of Mauritius otherwise than by virtue of this section or section 20(3)” [3] .

This principle is also embodied in section 6(1)(a) of the European Convention on Nationality 1997 which reads as follows: “children one of whose parents possesses, at the time of the birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad. With respect to children whose parenthood is established by recognition, court order or similar procedures, each State Party may provide that the child acquires its nationality following the procedure determined by its internal law” [4] .

However, this principle has an exception as citizenship by descent is only applicable for one generation. That is a person who is born outside Mauritius will not be granted Mauritian citizenship if his natural parent was born outside Mauritius himself and had obtained Mauritian citizenship due to the principle of Jus Sanguinis. A person is eligible to Mauritian citizenship only if his natural parent was born in Mauritius or has access to Mauritian citizenship according to the Mauritian citizenship Act.

But before the amendment made in 1995 to section 23 of the Constitution, a person born outside Mauritius would become a citizen of Mauritius only if his father was a citizen of Mauritius at the date of his birth. Therefore if a child was born from a woman having a Mauritian citizenship, but the father of the child was a foreigner, the child would not become a citizen of Mauritius. This was the case before 1995, but today we can see that even if the child has a Mauritian mother and a foreign father, the child is still eligible to become a citizen of Mauritius by virtue of this principle.

The Registration of Married Persons

According to the section 21 and 24 of the Mauritian Constitution, a foreign person who was or had been married to a Mauritian citizen on 12 March 1968, shall be granted Mauritian citizenship upon registration. However, this is subject to exception as section 21(1) (b) of the same Constitution also provides that if that person was not a citizen of the United Kingdom and Colonies on 12 March 1968, this person shall be subject to exception or qualification as may be prescribe in the interest of National security or public policy. The section 21 and 24 of the constitution is deemed to be read together with section 7 of the Citizenship Act 1968 which prescribe that the person must satisfy the minister that he has been living with his spouse under the same conjugal roof in Mauritius for a period of not less than four years immediately preceding his application. An approach to this will be made in chapter three which is concern with proposal for reforms.

Moreover, a foreign person will not be granted a certificate of Mauritian citizenship if The Prime Minister of Mauritius believes that it is in the interest of National security to do so. In case where it is question of National security, the decision of The Prime Minister will not be questioned by anyone nor will it be reviewed or subject to appeal by any court. This was clearly demonstrated in the case of Esther v The Honourable Prime Minister and Minister of External Affairs [5] . In this case the applicant was a foreign woman who saw her application being refused by The Prime Minister. The applicant argued that being the wife of a Mauritian national, she had an absolute right to be registered as a Mauritian citizen by virtue if section 24 of the Mauritian Constitution.

Consequently, the respondent set aside the argument of the applicant by saying that “the right is subject to the interest of national security and public policy and, lastly, that conduct prejudicial to the peace, public safety, public order and public security makes it neither proper nor expedient for the respondent to register the applicant as a citizen. We will deal with each of those grounds in turn”. The application was set aside with cost by two judges namely Espitalier-Noël and Lallah. In their decision the judges said the following: “As we observed earlier, the case for the applicant would appear to have been based on the absolute character of her right which, we have so found, is not absolute but is subject to considerations of national security and public policy. It may very well be that the applicant, if she had not been mistaken about the absolute character of her right, might have sought to bring before us such material as to her personal or other circumstances (e.g. whether she has any children from the marriage, whether she lives with her husband, the hardship that would be caused to her family and herself, whether she had in fact become stateless and any other relevant circumstances) which might have shown the respondent’s decision, in those circumstances, to have been such as would have made it necessary for the Court to intervene”

Therefore if an analysis of that decision is made, it can be found that the court will only intervene if the matter is based on another ground other that National security or public policy. The Convention on the Nationality of married women 1957 also supports this principle. Under the article 3 of this Convention it is clearly stated that “1. Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy” [6] .

In addition, article 2 of the same Convention states that a wife shall not be prevented to retain her citizenship if her husband renounce or acquire a nationality. Article 2 reads as follows: “Each Contracting State agrees that neither the voluntary acquisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national” [7] .

Before the amendment made in 1995 only foreign women who were married to a citizen of Mauritius were eligible to become a citizen of Mauritius upon registration and at that date, women who had the will of becoming a Mauritian citizen was bound to renounce her citizenship or nationality which she possesses before her marriage in order for her to be granted Mauritian citizenship. Therefore we can clearly see the evolution in the citizenship law of Mauritius. By the amendment made too our citizenship law in 1995, discrimination towards men that marries a citizen of Mauritius have been eliminated.

The Mauritius Citizenship Act 1968

The different mode of acquisition of Mauritian citizenship is also found in part 2 of the Mauritius Citizenship Act 1968. According to this Act, there are four modes of acquiring Mauritian citizenship. These modes are listed as follows:

1. Citizenship by adoption.
2. Citizenship by incorporation of territory.
3. Citizenship by registration.
4. Citizenship by naturalization.

Citizenship by adoption

According to section 3 of the Mauritius Citizenship Act 1968, a minor who is not a citizen of Mauritius shall become a citizen if the latter is being adopted by Mauritian citizens. However if the minor is being adopted by two persons, then the male adopter have to be a Mauritian in order for the minor to be granted Mauritian citizenship. In the case of a minor, it is very easy to acquire Mauritian citizenship as the minor will be automatically becomes a Mauritian as soon as the adoption order is produce before the appropriate institution.

Regarding adoption, the “Code Civil” of Mauritius provides for different mode of adoption. Articles 343-370 embodied the different methods of adoption and the condition and effect that are attached to these different methods respectively. For the purpose of this dissertation, only article 346 of the code will be taken into consideration. Article 346 of the code provides that “la demande en adoption d’un étranger doit faire l’objet d’une autorisation spéciale qui se prononcera à son égard comme en matière de naturalization” [8] .

Citizenship by incorporation of territory

Citizenship by incorporation of territory implies that, when Mauritius acquires a territory, the person residing there shall become citizens of Mauritius upon an order pass by the President of Mauritius. This is embodied in the section 4 of the Mauritius Citizenship Act 1968. Section 4 of the Mauritius Citizenship Act reads as follows: “Where any territory becomes part of Mauritius, the President may by Order specify the persons who shall be citizens of Mauritius by reason of their link with that territory and those persons shall become citizens of Mauritius as from the date specified in the Order” [9] .

Moreover section 8 to 10 of the Declaration on the Consequences of State Succession for the Nationality of Natural Person 1996 goes in the same direction. In these sections, it clearly imposes an obligation to grant the citizenship of the Successor State to the permanent citizens of the Predecessor State. It is also stated in the section 8(b) that there shall be no discrimination while doing so. Section 8(b) reads as follows: “Such nationality shall be granted without any discrimination in particular on the basis of ethnic origin, colour, religion, language or political opinions” [10] .

This section is very useful as it would respond to precedents case where Mauritius sold its territory to the British. Thus, if this territory is returned to Mauritius, it would be very easy for the residents of that territory to become citizens of Mauritius by virtue of this section. However before the amendment made in 1991, it was the Governor General who had to pass the order to specify the persons who shall become Mauritian.

Citizenship by Registration

A person may acquire the status of citizen in Mauritius by means of registration. According to our law, citizenship by registration is being governed by section 5, 6 and 7 of the Mauritius Citizenship Act. Our law deals with three type of registration which is as follows:

1. Registration of married person
2. Registration of commonwealth citizens
3. Registration of minors

The registration of married person has already been dealt with. In this part we will concentrate only on registration of commonwealth citizens and minors. Therefore it can be said that citizenship by registration is reserved to persons who have either a political or a familial link with a country.

Registration of commonwealth citizens

By virtue of section 5 of the Mauritius Citizenship Act 1968, a commonwealth citizen may be granted Mauritian citizenship if the latter satisfies the related criteria. In order for the commonwealth citizen to be registered as a Mauritian citizen, the latter must be of full age and capacity as it is clearly specified in section 5. The same section also provides that the commonwealth citizen must make “the application in the prescribe manner and satisfy the minister that:

1. he is of good character;
2. he has an adequate knowledge of the English language, or any other language current in Mauritius, and of the responsibilities of a citizen of Mauritius;
3. he has resided in Mauritius throughout the period of 5 years, or such shorter period (not being less than twelve months) as the Minister may in the special circumstances of any particular case accept, immediately preceding the date of his application; and
4. he intends, if registered, to continue to reside in Mauritius” [11] .

Section 5(b) of the Mauritius Citizenship Act clearly provide for adequate knowledge of English or “any other language current in Mauritius”. Any other languages here refer to Creole and French which are most of the time used in Mauritius apart English language.

However, there is an exception which is provided under section 5(2) [12] of the Mauritius Citizenship Act. For a commonwealth citizen to be register as a Mauritian citizen, the latter must first renounce to any other citizenship status that he may posses. Therefore subject to this section, a person will not be able to acquire Mauritian citizenship if he does not renounce his previous citizenship status.

Registration of minors

A minor may become a citizen of Mauritius by means of registration as is provided by section 6 of the Mauritius citizenship Act 1968. According to this section a minor child of a citizen of Mauritius may be register as a citizen of Mauritius if the parent or the guardian who is responsible of the child makes an application for registration in the prescribed manner. But that does not mean that every minor child of a citizen of Mauritius will be granted Mauritian citizenship if his parent makes an application as the final decision lies in the hands of the Minster. As if we take a look at section 6(1) of the Mauritius Citizenship Act which reads as follows: “The Minister may cause the minor child of a citizen of Mauritius upon application, made in the prescribed manner by the parent or guardian of the child” [13] .

We can analyze from the section above that the word “may” is being used and not the word “shall”, thus it clearly shows that the Minister have the discretion of whether to grant a minor child the status of citizenship or not.

Section 6(2) of the same Act provides registration of minor under special circumstances. It is again the Minster that may cause a minor child to be register as a Mauritian citizen under special circumstances.

But in the case of C. Panjanadum v The Prime Minister of Mauritius [14] , the respondent saw his decision being quashed by a Judgment delivered by Honourable Y.K.J. Yeung Sik Yuen, Judge. The judgment was as follows: “We quash the decision conveyed in the letter of the Acting Secretary for Home Affairs dated 9 May l994 and declare that Ian Vassen Schmitt-Panjanadum is a citizen of Mauritius under section 23 of the Constitution. With costs against the respondent”.

In this case The Prime Minister of Mauritius refused to grant a certificate of citizenship to Ian Vassen Schmitt-Panjanadum, who had a Mauritian national as father and a French national as mother. Even though the decision regarding citizenship lies in the hands of The Prime Minister, sometimes, the court will quash the decision of the latter, if he goes against the Constitution which was the case at that time.

Naturalization

Naturalization in Mauritius takes into consideration British protected person or alien and investors. In Mauritius the concept of naturalization and the concept of registration of commonwealth citizens share some common criteria which are specified in section 9 of the Mauritius citizenship Act 1968. Therefore, if a comparison is made between section 5 and 9 of the Mauritius Citizenship Act it can be seen that the criteria which are required under section 5(1) is more or less same to the criteria that are listed in section 9(1). However, the criteria for naturalization seem slightly stricter than the criteria mentioned for registration. As such, if an analysis of section 9(2) (a) is made; the strict implication of acquiring citizenship under naturalization can be identified. Section 9(2) (a) of the Mauritius Citizenship Act reads as follows: “allow a continuous period of twelve months ending not later than six months before the date of the application to be reckoned for the purpose of subsection (1) (c) as if it had immediately preceded that date; and” [15]

Thus, it can be spotted in section 9(2) (a) that the continuous residence period of twelve months preceding the application must not be later than six months before the date of the application whilst concerning the period of residence under the concept of registration it is not mention whether it should not be later than six months before the date of the application. When an application for naturalization is made by any alien or British Protected Person, the applicant will need four references [16] to support his application. However, none of these references shall be solicitors, agents or relatives of the applicant; this is clearly shown under appendix VII (regulation 7) of the Mauritius Citizenship Act 1968.

In the year 1999, the parliament of Mauritius made an amendment to the Mauritius citizenship Act. By means of this amendment, section 9(3) has been modified. This section makes room for an investor to be eligible to acquire the status of Mauritian citizenship. From an analysis of section 9(3), one can clearly understand that if a person has invested a sum of money which shall not be less that US Dollars Five Hundred Thousand (USD 500,000) or other sum as may be prescribed, will be qualified to become a citizen of Mauritius. Here also, it can be deduced that the laws concerning citizenship in Mauritius have strengthen. With reference to the law before the amendment made in 1999, only a sum of money not less that three hundred thousand rupees was required as investment in order for a foreign investor was made eligible to the acquisition of a Mauritian citizenship.

A foreign investor who invests a sum not less that US Dollars Five Hundred Thousand (USD 500,000) in the economy of Mauritius will have an edge over a foreigner who has not invested such sum of money whilst seeking for naturalization. As such, the period of residence accepted for a foreign investor is 2 years whilst for a foreigner who has not invested, the period of residence amounts to 5 years. Moreover, it must be noted that when an investor is naturalised, the latter does not need to renounce to his original citizenship of any other country he possesses whereas in the case of naturalization of aliens and British Protected Person, they need to renounce to their previous citizenship [17] .