Change of status from Visitor’s Visa now allowed for spouses and children of South African citizens and permanent residents meaning you can from a tourist visa to spouse or relatives visa

Spouses and children of South African (SA) citizens and permanent residents were prohibited from changing their Visitor’s Visas, used to enter South Africa, to other types of longer term visas, for example relative’s visas, study visas and work visas. These applicants had to travel abroad (to their home countries, although they perceived SA as their home country) file the required longer term visa application at the South African Mission, obtain the visa and then return to South Africa. This meant in practice that families were torn apart, the spouses’ right to cohabitation and children’s rights to dignity were infringed whilst the visa formalities had to be met.
Regulation 9(9)(a) of the Immigration Act, that imposed the restriction of change of status from a Visitor’s Visa to a longer term visa on spouses and children of SA citizens and permanent residents was however not applicable to the spouses and children when the applicant was an accompanying spouse or child of a holder of a business or work visa, who wishes to apply for a study or work visa. This meant that spouses and children of foreign nationals holding a business or work visa had more rights, in terms of the Immigration Act and Regulations, than the spouses and children of SA citizens and permanent residents.
This restriction imposed by Regulation 9(9)(a) on spouses and children of SA citizens and permanent residents was surely not what the legislature had in mind when the Immigration Regulations were drafted, but same was still imposed and this lead to much heartache and wasted expenditure where spouses and children had to travel abroad to submit their visa applications.
On 28 June 2019, the Constitutional Court handed down judgment in a case where applicants sought to have Regulation 9(9)(a) of the Immigration Regulations declared unconstitutional on the basis that it limits the constitutional right to dignity by limiting the rights of persons to marry and cohabit, and the best interests of children by limiting their rights to family care.
The applicants argued that the lack of an exception that catered for holders of visitors’ visas who are spouses or children of South African citizens or permanent residents limited their constitutional right to dignity.
BACKGROUND FACTS TO THIS COURT CHALLENGE: NANDUTU AND OTHERS V MINISTER OF HOME AFFAIRS AND OTHERS [2019] ZACC 24
This matter involved two different family units, each of which comprises a foreign spouse who is married or life partner of a South African citizen or permanent resident.
In each of these family units the spouse of the SA citizen or permanent resident was in possession of a Visitor’s Visa and wanted to apply for a longer term visa whilst in South Africa, there applications for longer term visas could not even be accommodated under exceptions that make it possible for certain Visitor’s visa holders to apply for a change in visa status from within South Africa.
That was because the exceptions did not cover their situation.  The exceptions which allows for exceptional circumstances to change a Visitor’s visa to another type of visa are contained in Regulation 9(9)(a) of the Immigration Regulations.
The main issue before the Constitutional Court was whether Regulation 9(9)(a) is constitutionally invalid to the extent that it does not extend “exceptional circumstances” to include “where the applicant is a foreign spouse or child of a South African citizen or permanent resident”.  
THE CONSTITUTIONAL COURT RULING AND THE IMPACT OF THE RULING:
The majority judgment declared Regulation 9(9)(a) invalid and inconsistent with the Constitution, in that it unjustifiably limits the constitutional right to dignity and the right that a child’s best interests are paramount in every matter concerning the child.
Relying on the Dawood case (Dawood v Minister of Home Affairs), the majority jsutices in this matter concluded that Regulation 9(9)(a) limited the right to dignity and right that a child’s best interests are paramount in every matter concerning the child.
Accordingly, the majority justices declared Regulation 9(9)(a) constitutionally invalid, suspended the declaration of invalidity for 24 months and ordered a reading-in on an interim basis of words that have the effect of adding to the exceptions under the regulation spouses or children of South African citizens or permanent residents, the following sub-section was therefore added to Regulation 9(9)(a):
‘(iii) is the spouse or child of a South African citizen or permanent resident.’
WAY FORWARD FOR SPOUSES AND CHILDREN OF SA CITIZENS AND PERMANENT RESIDENTS:
The effect of this ruling and the addition of a reading-in to Regulation 9(9)(a) is that spouses and children of South African citizens or permanent residents would not have to depart from South Africa in future when applying for a change in Visitor’s visa status. The change of status applications can therefore be submitted at VFS offices located in South Africa.
Spouses (including qualifying life partners) and children of SA citizens and permanent residents may now opt to travel to South Africa with their visa exemptions that may be valid for up to 90 days (where applicable) and apply in South Africa for a longer term work or study visa.
Regulation 9(9)(a) does not stipulate an exception for change of condition applications from Visitor’s visa to Relative visa, it will therefore be interesting to see whether the Department of Home Affairs will interpret the Constitutional Court ruling correctly or if it will take another court challenge to convince the Department. The constitutional right to dignity and rights of persons to marry and cohabit, and the best interests of children are paramount and should be protected at all times



Denied entry - 27 Bangladeshi nationals caught with fake visas at OR Tambo Airport

The Border Management Authority arrested 28 foreign nationals for attempting to enter South Africa illegally.
• The Border Management Authority (BMA) apprehended 28 Bangladeshi nationals travelling from Dubai using fake documents.
• Twenty-seven of them had fraudulent visas and one had no visa at all.
• The BMA recently graduated 400 border guards, who are expected to aid in the control of people coming into and leaving South Africa.
Twenty-eight foreign nationals have been arrested for attempting to enter South Africa illegally.
During an intelligence-driven operation at OR Tambo International Airport on Saturday, the Border Management Authority (BMA) intercepted a group of Bangladeshi citizens on a flight from Dubai.
It found 27 of them to be in possession of fraudulent visas and one with no visa at all.
`The travellers were in contravention of the South African Immigration Act by possessing fraudulent travel documents. The Bangladesh nationals arrived in the country with visitors` visas and were denied entry,` said BMA commissioner Michael Masiapato.
He highlighted the importance of collaborations with embassies and foreign missions in verifying visa legitimacy and encouraged improvements on detection systems.
`I commend the diligent efforts of our immigration officers in intercepting the Bangladesh nationals. The BMA`s vigilance and commitment to maintaining the integrity of our immigration system is exemplary. This operation underscores the importance of our continuous efforts to secure our borders and ensure that all entrants comply with our legal requirements,` Masiapato added.
The BMA said 400 junior border guards were entering the system following their pass-out parade last week. More interceptions are expected across all ports of entry.

BMA intercepts 28 Bangladeshis with fake visas at OR Tambo Airport

A total of 28 Bangladeshi nationals were intercepted on arrival at OR Tambo International Airport (ORTIA), the Border Management Authority (BMA) said.

It is understood the Bangladeshis were intercepted by BMA Immigration officials during an intelligence-driven operation on a flight from Dubai on Saturday.

Fake visas
With just two days before South Africa’s national and provincial elections, the BMA said it is on high alert at all ports of entry to monitor movements.

“During the operation, 27 Bangladeshis were found to be in possession of fraudulent visas and one Bangladeshi did not have a visa at all.

“The travellers were in contravention of the South African Immigration Act by possessing fraudulent travel documents. The Bangladesh nationals arrived in the country with visitors’ visas and were denied entry,” the BMA said.


High alert
BMA Commissioner Dr Michael Masiapato has commended the interception by the BMA Immigration officials and highlighted the importance of collaborations with embassies and foreign missions to verify visa legitimacy.

Masiapato also emphasised the need for continued efforts in confiscating illegal documents especially at this critical time of elections.

“I commend the diligent efforts of our immigration officers in intercepting the Bangladesh nationals. The BMA’s vigilance and commitment to maintaining the integrity of our immigration system is exemplary.

“This operation underscores the importance of our continuous efforts to secure our borders and ensure that all entrants comply with our legal requirements,” Masiapato added.

Detection
The BMA said it will continue to tighten its detection systems at the ports of entry.

“400 More BMA junior border guards are now entering the system following their pass-out parade held last week and more interceptions are expected across all ports of entry,” it said.

Last month, the BMA said more than one million people moved through South Africa’s ports of entry over the Easter weekend - up more than 24% from the previous year.

Moving to South Africa what can I bring and what duties do I pay

The ins and outs of importing personal goods into South Africa
Importing personal goods into South Africa is subject to a host of rules and regulations, as is to be expected. This is standard practice all around the world when moving goods from one country to another.
But we’ve simplified matters for you by summarising all the important information in one place. Simply continue reading to learn what’s allowed and what’s not and which forms are required.
1. The rules and regulations
Immigrants, returning SA residents, temporary residents and diplomats are allowed to import household and personal effects into South Africa.
You are allowed one-duty free import. To do a second import, you’ll have to obtain permission from SA Customs.
The difference between personal and household effects:
‘Personal effects’ are items of a personal nature whereas ‘household effects’ are items which are less personal in nature.
Examples of personal effects are clothing, shoes, books, videos and sporting equipment while ‘household effects’ could be, for instance, furniture, rugs, appliances, and crockery.
The required forms are:
• Inventory of goods.
• Form DA 304 - Item 407.06 of Schedule No.4 to the Customs and Excise Act.
• Form P1.160 - Declaration in respect of unaccompanied manifested household effects.
• Certified copy of passport.
• Certified copy of resident permit (where applicable). The passport must have the entry stamp into South Africa. This will also need to be certified.
The fine print:
• Returning residents must have been out of South Africa continually for at least 6 months to qualify for duty-free importation.
• Temporary residents will only be allowed duty-free importation if in possession of a valid temporary work permit. This must have a validity of at least six months.
• Diplomats must present a diplomatic clearance certificate.
2. Importing new or used cars
Should you import your car when moving to South Africa, you’ll be liable for import duty and tax. The documents you’ll need to import your car are:
• Import permit. You must obtain this permit prior to shipping the vehicle to South Africa.
• Letter of Authority. You’ll need to request this letter from the The South African Bureau of Standards (SABS).
Please note: It is generally prohibited to import left-hand drive vehicles if the vehicle was registered in the name of an importer on or after 1 January 2000, unless authorised by the SABS.
Required documents
To import your car into South Africa, you must have the following:
• In the case of permanent residents, your PR certificate.
• Proof of emigration from South Africa, proof of permanent residence obtained abroad as well as evidence that such permanent residence has been withdrawn. This is in the case of returning South Africans.
• Completed DA 304 A form.
• Purchase documents.
• Registration certificate/permit.
• Documentary evidence of the date on which delivery of the vehicle was taken.
• Documentary evidence of the date on which the vehicle was handed over for shipment to SA.
• An import permit, for used vehicles.
• An original Letter of Authority.
3. Importing vehicles when changing permanent residence to South Africa
In terms of the Customs and Excise Act:
• Immigrants, and
• South African residents who originally emigrated from the Republic obtained permanent residents status abroad, and thereafter return,
being natural persons, may after obtaining permanent residence in South Africa or after returning to South Africa permanently, import one car per family under full rebate of customs duties:
(i) provided the vehicle imported is the personal property of the importer and has personally been used by him or her
(a) for a period of not less than 12 months prior to his or her departure to the Republic; or
(b) for a period of less than 12 months prior to his or her departure to the Republic; or
(ii) in the case of approved intended residents arriving from an African country, is owned and used for such shorter period as the Commissioner may in exceptional circumstances decide; and
(iii) provided the vehicle is not offered, advertised, lent, hired, leased, pledged, given away, exchanged, sold or otherwise disposed of within a period of 20 months from the date of entry.
Should you have owned and used the vehicle for less than 12 months prior to your departure to South Africa, the duty rebate will be reduced pro-rata.
4. Restricted and prohibited articles
SA Customs restricts and prohibits a number of articles when importing personal goods into South Africa:
Restricted articles:
You may import the following items into South Africa but you must obtain a licence and/or import permit prior to doing so:
• Firearms. Please note that firearms are subject to inspection by customs. You should therefore pack all firearms separately and ensure that these items are easily accessible.
• Liquor. Liquor is subject to duty which means you must draw up a complete list of the liquor you’re importing noting the alcohol percentage, label names and values.
• Plants, seeds and bulbs.
Prohibited articles:
You may not import the following items:
• Ammunition and explosives.
• Narcotic drugs.
• Pornographic material.
• Agricultural products.
• Uncooked meat and poultry.
• Honey, beeswax, bees, bee eggs or larvae, and used beehive appliances.
• Uncut diamonds.
• Unwrought gold.
5. Customs clearance
You must be in South Africa before customs clearance can take place. It is possible to clear your belongings in your absence, but Customs may demand to see your passport.
Should you not be available to show your passport, Customs will place your goods into Bond. Customs will then only release your belongings once it has received your passport and requested documents.
Please note:
• Custom clearance takes an average of 7 to 10 working days from the date of presentation of documents.
• SA Customs may, at their discretion, designate any consignment for examination. You can expect to pay an examination fee for this.
One final note on importing personal goods into South Africa
While we have done our best to provide you with the latest update information, it is advisable to also consult with the South African Revenue Service prior to your move to South Africa. SARS is the governing body for all matters pertaining to imports


Canada to restore right of citizens born abroad to pass citizenship to children also born outside country

Federal government to amend Citizenship Act, removing ‘second-generation cut-off’ introduced by Conservative government
Canada plans to restore the right of citizens born abroad to pass their citizenship to children also born outside the country, following a court ruling that a “first-generation limit” in the law was unconstitutional.
The federal government announced legislation to amend the Citizenship Act, removing a “second-generation cut-off” introduced by the previous Conservative government, after an Ontario court ruled in December that the limit was unconstitutional.
“We wanted to take this opportunity to continue to minimize differential outcomes as much as possible for children born abroad … compared to children born to Canadians [in Canada],” said Marc Miller, the immigration minister, to reporters on Thursday. “Not everyone is entitled to [citizenship], but for those who are, it needs to be fair.”
The previous Conservative government of Stephen Harper limited citizenship by descent to a single generation in 2009 following criticism of the $85m spent evacuating 15,000 Canadian citizens from Lebanon during the brief 2006 war with Israel, with Conservatives labelling such dual nationals “Canadians of convenience”.
Since then, Canadian citizens born abroad have been unable to pass their citizenship to any children born outside the country, creating what some have called a generation of “lost Canadians” and what critics argued amounted to a two-tiered system of citizenship.
The new bill would allow a Canadian born abroad to pass on citizenship if they have a substantial connection to Canada, demonstrated by showing they have spent at least three years in the country.
The “substantial connection” clause is aimed at addressing anti-immigration critics who claim that many immigrants leave Canada after obtaining passports and will only return to claim benefits.
“Today is a historic day for lost Canadians and their families,” said Jenny Kwan, a member of parliament and immigration critic for the New Democratic party, hailing the bill.
“This unjust law caused significant hardship and suffering to many Canadian families, separates families and rendered children stateless. It failed to recognize Canadians are global citizens who travel, study and work abroad, fall in love abroad and have families abroad.”
Citizenship remains a contentious issue in a nation with such high immigration. The immigration system is “falling apart”, said Tom Kmiec, Conservative MP and shadow immigration minister, in a statement. “Common sense Conservatives will fix our immigration system that the Liberals have broken.”
It is not clear how many people could be entitled to citizenship as a result of the bill, said Don Chapman, who fought to regain his citizenship after being born in the country and then taken to the United States as a child by his father. Mr Chapman coined the term “lost Canadians” and runs an organization of the same name advocating for citizenship rights for children of Canadians abroad.
“You won’t have a huge outpouring of people moving to Canada, but you will have a huge number of people that actually qualify for Canadian citizenship,” said Mr Chapman.
American actors Gene Hackman, Shirley MacLaine, and Warren Beaty are among those who could become Canadian as a result of the bill, Mr Chapman said.
“Will they come? I don’t know. I doubt it. But they would have the right.”