MOKGORO J citizenship provisions of the Act and the immigration policy it is said to support. But that is not the test for determining constitutionality under our Constitution. Section 27(2) of the Constitution sets the standard of reasonableness which is a higher standard than rationality.68 Is there unfair discrimination? [68] The fact that the differentiation between citizens and non-citizens may have a rational basis does not mean that it is not an unfairly discriminatory criterion to use in the allocation of benefits. If the differentiation is based on a ground listed in section 9(3)69 of the Constitution a rebuttable presumption that the discrimination is unfair is created by section 9(5).70 However, where, as in this case, the ground for the differentiation is not itself listed but is analogous to such listed grounds, there is no presumption in favour of unfairness and the unfairness first has to be established. 68 Bel Porto School Governing Body and Others v Premier, Western Cape and Another 2002 (3) SA 265 (CC); 2002 (9) BCLR 891 (CC) at para 46. 69 Section 9(3) provides: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” 70 Section 9(5) states: “Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.” See also Harksen v Lane NO and Others 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) at para 53. 42