High court judge finds
spousal visa rules unconstitutional
09 Jun 2022 – Groundup
The Western Cape high court has
ruled that certain provisions of the Immigration Act and its regulations are
unconstitutional.
Foreign parents of South African children should be
allowed to remain in the country even if their relationship with their spouse
ends.
A
judgment by the Western Cape high court means that foreigners who are parents
and caregivers of South African children will be allowed to remain in the
country after their relationships with their South African spouses come to an
end.
Judge
Mark Sher has ruled that certain provisions of the Immigration Act and its
regulations are unconstitutional.
Among the
applicants in the case before him were a 47-year-old German woman, who is a
mother of two, a French baker who has become his three children’s sole guardian
after his wife abandoned them, a British company executive, a Kenyan media
researcher and a Swiss carpenter.
All had
been residing and working in South Africa on “spousal visas”, which had been
extended from time to time but were no longer valid because of the termination
of their relationships.
They all
have children who are citizens. “All have been dutiful and supportive parents
and caregivers to their children, sharing parental responsibilities,” noted
Judge Sher.
The
applicants complained that because their relationships had ended, their
temporary residence rights in terms of the spousal visas issued to them, had
automatically expired. They were no longer allowed to work or live in South
Africa and must “depart”, failing which they would be deported.
Should
they wish to apply for any other form of visa, such as a visitor or relative
visa, they would have to do so from outside South Africa. Visitor and relative
visas also do not allow them to work in the country.
The
applicants said this was an unjustifiable limitation of their constitutional
rights and those of their children to dignity, equality and parental care. It
also offended the “best interests of the child” principle.
“They
point out that while their spousal relationship might have come to an end,
their parental relationships have not,” said Judge Sher.
“In
effect, the applicants have the Hobson’s Choice of either breaking the law by
continuing to live and work in the country in order to maintain their parental
responsibilities and relationships and contact with their children, or uphold
the law by leaving the country, therefore breaching their parental duties and
severing their contact and relationships with their children.
“I am of
the view that the effect of the provisions in issue results in a violation of
both their rights to dignity as well as those of their children, and the
children’s constitutional and parental rights,” the judge said.
The
Minister and officials of the Department of Home Affairs opposed the
application saying that the provisions were there to prevent abuse by
foreigners who “entered into sham marriages” to obtain rights of entry,
residence and work.
They
denied that the provisions in the Act were discriminatory but said any rights
limitation was justified and reasonable and commonly found in many open and
democratic countries throughout the world.
But Judge
Sher said the respondents had offered up very little, if any substance, about
the infringement of parental rights and right to dignity. For example, they had
not shown why it was necessary for foreign parents to leave the country and
their children in order to regularise their status.
“In order
to ensure that the country is not overburdened with additional South African
children who are destitute and need to be provided for at state expense, the
contribution which is provided by their foreign parents is surely a necessary
and needed one, as long as they were working in the country lawfully at the
time of the termination of their spousal visa.
“One can
expect that they should, if possible, continue to be accommodated in the
country so that they can continue to support their children and care for them,
both financially and emotionally,” said Judge Sher.
He
declared as unconstitutional sections of the Act that: require a foreigner who
holds a spousal visa, who has parental responsibility and rights, to leave
South Africa on the termination of the relationship; require such a person to
make an application for a change in status from outside South Africa; do not
allow a foreigner who may be eligible for a visitors or relatives visa to work
in South Africa in order to discharge their parental rights and
responsibilities.
Judge
Sher suspended the declaration of invalidity for 24 months to enable Parliament
to remedy the inconsistencies but ordered a “reading in” of the provisions in
the interim.
One
applicant, a Zimbabwean boxing coach, sought an order setting aside the
declaration of him as an “undesirable person”.
Judge
Sher declined to grant this order. He said the man had been in the country
illegally since 2012 and had shown a “blatant disregard for the law”.
“Although
the Court’s sympathies lie with his child, assisting him would encourage and
effectively grant a licence to foreigners to enter the country illegally, and
to live and work here illegally until the moment when they have a child who is
a South African citizen or permanent resident, which they need to support,
which they could then use to legalise their stay.
“No
country that functions in terms of the rule of law can endorse such a stance.”
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