Gender and Nationality Discrimination: When Can Immigration Status Legitimately Affect a Woman’s Rights?

As South Africa commemorates 70 years since the historic Women’s March of 1956, the legacy of the women who marched to the Union Buildings remains deeply relevant. On 9 August 1956, approximately 20,000 women from across South Africa stood together in protest against the discriminatory pass laws, demonstrating extraordinary courage in challenging laws that restricted their freedom and dignity. Their enduring words, “Wathint’Abafazi, Wathint’imbokodo!”, continue to symbolise women's strength and resistance against injustice.

Seventy years later, South Africa's commitment to equality requires us to ask an important question: Does a woman's nationality or immigration status affect the rights and protections to which she is entitled?

The answer is nuanced. While the state has a legitimate constitutional authority to regulate immigration, immigration status cannot be used as a blanket justification for denying a woman fundamental rights. This is particularly important for foreign national women, including refugees, asylum seekers, permanent residents, visa holders and women whose immigration status may be uncertain.

The Constitutional Right to Equality

Section 9 of the Constitution of the Republic of South Africa, 1996, guarantees everyone the right to equality before the law and equal protection and benefit of the law. It expressly prohibits unfair discrimination on grounds including gender, sex and nationality.

The wording is significant. Many constitutional rights are granted to “everyone”, rather than only South African citizens. A woman's nationality therefore does not, in itself, place her outside the protection of the Constitution.

South Africa's constitutional commitment to equality must consequently be understood as extending beyond citizenship. The protection of human dignity, equality and freedom remains relevant to women regardless of where they were born.

Can Immigration Status Legitimately Affect a Woman's Rights?

South Africa, as a sovereign state, has the authority to regulate the entry, residence and departure of foreign nationals. Immigration legislation may therefore lawfully distinguish between citizens and different categories of foreign nationals.

Immigration status may affect matters such as:

• the right to enter or remain in South Africa;

• the conditions attached to a visa or permit;

• the right to work or conduct certain activities;

• eligibility for particular immigration benefits; and

• whether a person may lawfully remain in the country.

Such distinctions are not automatically unconstitutional.

The critical question is whether the distinction is lawful, rational and constitutionally justifiable, particularly where fundamental rights are affected.

Immigration Status Does Not Erase Fundamental Rights

There is an important distinction between a person's immigration status and her constitutional rights.

A foreign national may not have an unlimited right to remain in South Africa, but she does not lose her inherent dignity because her visa has expired. Similarly, an asylum seeker or undocumented woman may be subject to immigration laws, but this does not mean that she is outside the protection of the Constitution.

Rights such as human dignity, equality, freedom and security of the person and access to courts have significance beyond citizenship.

This distinction is particularly important when foreign national women experience gender-based violence, domestic abuse, trafficking, exploitation or other forms of vulnerability.

When Gender and Nationality Intersect

A foreign national woman may experience discrimination on multiple, intersecting grounds. Gender, nationality, immigration status and economic dependency can combine to create particular vulnerabilities.

For example, a woman whose immigration status is linked to a spouse or partner may fear reporting abuse because she believes that leaving the relationship could jeopardise her ability to remain in South Africa.

Immigration status should not become a mechanism through which women are prevented from seeking protection, accessing justice or exercising their fundamental rights.

Each case must, however, be assessed according to the applicable immigration legislation, constitutional principles and specific facts.

The State's Power to Control Immigration Is Not Unlimited

The state has an important responsibility to maintain an effective immigration system. However, the exercise of immigration powers remains subject to the Constitution.

Where government action limits a constitutional right, the limitation must be capable of justification under section 36 of the Constitution. The limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Consequently, the fact that a person is a foreign national cannot, on its own, provide an answer to whether a particular limitation of her rights is lawful.

The nature of the right, the purpose of the limitation, the circumstances of the individual and the impact of the decision must all be considered.

Citizenship Rights and Fundamental Human Rights

It is equally important to distinguish between rights specifically connected to citizenship and rights that belong to everyone.

Certain constitutional rights are expressly reserved for South African citizens. Section 19, for example, protects citizens' political rights, including the right to vote.

Other constitutional rights are framed as belonging to “everyone.”

Therefore, being a foreign national does not mean that a woman is entitled to no constitutional protection. Instead, the specific right in question must be examined to determine whether citizenship or immigration status is legally relevant.

A Foreign National Woman Remains Entitled to Dignity and Protection

The principle is simple:

Immigration status may determine whether a person has a legal right to enter or remain in South Africa. It does not determine whether she is worthy of dignity, equality and protection under the law.

The legacy of the 1956 Women's March reminds us that laws affecting women must always be examined through the lens of equality, dignity and justice. Seventy years after thousands of women stood together against discriminatory laws, the constitutional project requires South Africa to remain vigilant against discrimination in all its forms.

For foreign national women, this means recognising that immigration control and constitutional rights must coexist. The state may regulate immigration, but those powers must be exercised within the boundaries established by the Constitution.

How Ndou Attorneys Can Assist

At Ndou Attorneys Inc., our Immigration Law Department assists individuals and families with navigating South Africa's complex immigration framework, including matters involving visas, residence, asylum, deportation and other immigration-related challenges.

Where immigration status intersects with constitutional rights, gender discrimination or vulnerability, obtaining appropriate legal advice is particularly important.

As we commemorate the 70th anniversary of the Women’s March, we reaffirm the principle that inspired generations of women:

A woman's nationality may affect her immigration status, but it should never diminish her dignity, equality or right to protection under the law.

This article is intended for general informational purposes and does not constitute legal advice. Immigration matters are fact-specific and should be assessed by a qualified legal professional.