Van Zyl Retief

A foreigner’s immigration status is determined by the relevant visa or permanent residence permit and the rights and obligations related to it, as granted to them in terms of the Act.

Applications were consolidated and brought in the Western Cape High Court, seeking orders declaring the Act or certain sections thereof to be inconsistent with the Constitution, especially when read together with certain of the Immigration Regulations which were promulgated in terms thereof. These sections were deemed inconsistent to the extent that they require foreigners who are parents and caregivers of SA children to cease working and leave the country when their spousal relationships with their SA spouses come to an end, or when they no longer co-habit together.

The spousal visa that is in issue, provided for in the Act, affords temporary residence and it was held by the Constitutional Court in Nandutu v Minister of Home Affairs 2019 (5) SA that the nature of the rights and conditions attached to the spousal visa are different from an ordinary visitor’s visa in the sense that it intends to offer a foreign spouse a permanent route to a permanent residence permit provided that the foreigner has been the spouse of an SA citizen for 5 years. However, such permit will lapse if at any time within a period of 2 years from the date of issue the spousal relationship ceases. At this point, the foreign resident is to depart from SA, failing which they will be considered illegal foreigners and be deported. The Act is unclear, however, as to how it is to be determined that a spousal relationship has ended.

The Honourable Justice Sher pointed out that: “The applicants contend that the legislative provisions in question are unconstitutional inasmuch as their effect is to unjustifiably limit their constitutional rights and those of their children, to dignity and equality, and to parental care and legislative processes that give effect to the best interests of the children”. The Applicants also claimed that being forced to cease working in SA and undergoing deportation not only have a financial impact on their children but also in terms of their development and emotional wellbeing.

Sher further explored the Constitutional Court’s decision in the Nandutu matter, in which it was stated that marriage and family were social institutions of ‘vital importance’ and went further to say that marriage imposed moral and legal obligations on both spouses including a duty of support and cohabitation, as well as joint responsibility for supporting and raising children born from it.

As our Courts always consider the best interest of the child, Sher further considered the Children’s Act 38 of 2005 and the African Charter on the Rights and Welfare of the Child, adopted by the OAU in 1990 and adopted by SA in November 1999, stating that: “both these instruments recognize the right and dignity of children and their parents and that the interest of the child shall be primary consideration as well as that a child is not to be separated from their parents against their will except when necessary”.

In these circumstances, foreign parents are faced with a very difficult situation, to either break the law by continuing to live and work in SA to maintain their responsibilities and relationship with their children or abide the law and leave the country and risk failing to uphold their duties as parents.

An order was made that the declaration of invalidity is suspended for a period of 24 months, in order to afford Parliament the necessary time to remedy the inconsistencies with the Act and in the interim certain provisions to be read-in to the Act. Should Parliament not remedy same, the readings-in shall become final.

Reference List:

  • Immigration Act 13 of 2002.
  • WCHC.TR and Others v The Minister of Home Affairs and Others; RA and Others v The Minister of Home Affairs and Others.
  • WCHC.TR and Others v The Minister of Home Affairs and Others; RA and Others v The Minister of Home Affairs and Others.

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