Court Case Summary – Spousal Relationship ends and Spousal Visa ends can Parent work on relatives visa via child , answer is YES and parent can stay here.

In the result, I make the following Order:

1. It is declared that the Immigration Act, 13 of 2002 (‘the Act‘) alternatively

sections 10(6), 11(1)(b) and 18(2) thereof, as read together with regulations 9(5)

and 9(9) of the Immigration Regulations (‘the Regulations’), 2014 as published

under GN R413 in GG 37679 of 22 May 2014 (as amended), is/are inconsistent

with the Constitution of the Republic of South Africa, 1996 and invalid to the

extent that it /they:

1.1 Require a foreigner who was (a) the holder of a spousal visa in

terms of s 11(6) of the Act which is no longer valid by virtue of the

termination of the spousal relationship on which it was based, who (b) has

parental responsibilities and rights in terms of the Children’s Act 38 of

2005 in respect of a SA citizen or permanent resident child of the

aforesaid spousal relationship, which responsibilities and rights they were

discharging at the time of the termination of the said spousal visa, to

cease working in and to leave South Africa; and

1.2 require such a foreigner to make application for a status, from

outside South Africa; and

1.3 do not allow such a foreigner, who may be eligible for a visitor’s visa

in terms of s 11 or a relative’s visa in terms of s 18 of the Act to conduct

work in South Africa, in order to discharge their aforesaid parental

responsibilities and rights in terms of the Children’s Act in respect of a SA

citizen or permanent resident child of the aforesaid spousal relationship.

2. The declaration of invalidity in paragraph 1 is suspended for a period of 24

months from the date of this Order to enable Parliament to remedy the

inconsistencies that have resulted in the declaration.

3. Should Parliament fail to remedy the inconsistencies that have resulted in

the aforesaid declaration within the period referred to in the preceding paragraph

the readings-in which are to be effected in terms of paragraph 4 of this Order

shall become final, save and unless an affected and/or interested party makes

application, before the expiry of the aforesaid period, for a further suspension of

the aforesaid declaration and/or for such further or alternative relief as may be

appropriate.

4. During the period of suspension, the following is to be read into the

regulations and provisions of the Act:

4.1 Regulation 9(9) of the Immigration Regulations is to be read to

include, as sub-regulation 9(9)(iv): ‘(iv) is the foreign parent of a SA citizen

or permanent resident child of a spousal relationship in respect of which a

spousal visa was issued in terms of s 11(6) which is no longer valid by

virtue of the termination of the aforesaid spousal relationship, and in

respect of which child the foreign parent has parental responsibilities and

rights in terms of the Children’s Act 38 of 2005, which they are

discharging’;

4.2 Regulation 11(4) of the Immigration Regulations is to be read to

include, as sub-regulation 11(4)(d): ‘(d)’ work which a foreigner who was

the holder of a spousal visa in terms of s 11(6) of the Act (which visa is no

longer valid by virtue of the termination of the spousal relationship on

which it was based), is able to demonstrate he/she is required to perform

in order to discharge parental responsibilities and rights in terms of the

Children’s Act 38 of 2005 in respect of a SA citizen or permanent resident

child of the aforesaid spousal relationship, and which responsibilities and

rights they were discharging at the time of the termination of the said

spousal visa,’

4.3 Section 18(2) of the Act is to be read as follows: ’Save in the case of

a foreigner who (i) was formerly the holder of a spousal visa in terms of s

11(6) which is no longer valid because the spousal relationship on which it

was based no longer exists, who (ii) is able to demonstrate that such work

is required by the foreigner in order to discharge parental responsibilities

and rights in terms of the Children’s Act 38 of 2005 in respect of a SA citizen

 or permanent resident child of the aforesaid spousal relationship,

the holder of a relative’s visa may not conduct work.’

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Application for asylum

SA Migration | 30 Nov 2022

In terms of  No. 42932 GOVERNMENT GAZETTE, 27 DECEMBER 2019 - Refugees Act (130/1998): Refugees Regulations.

8. (1) An application for asylum in terms of section 21 of the Act must―

(a) be made in person by the applicant upon reporting to a Refugee Reception Office or on a date allocated to such a person upon reporting to the Refugee Reception Office or by an online appointment provided by the designated refugee Reception office ;

(b) be made in a form substantially corresponding with Form 2 (DHA-1590) contained in the

Annexure;

(c) be submitted together with―

(i) a valid asylum transit visa issued at a port of entry in terms of section 23 of the

Immigration Act, or under permitted circumstances, a valid visa issued in terms of the

Immigration Act;

(ii) proof of any form of a valid identification document: Provided that if the applicant

does not have proof of a valid identification document, a declaration of identity must

be made in writing before an immigration officer; and

(iii) the biometrics of the applicant, including any dependant.

(2) Any person who submits a visa other than an asylum transit visa issued in terms of section 23 of the Immigration Act must provide proof of change of circumstances in the period between the date of issue of the visa and the date of application for asylum.

(3) Any person who upon application for asylum fails at a Refugee Reception Office to produce a valid visa issued in terms of the Immigration Act must prior to being permitted to apply for asylum, show good cause for his or her illegal entry or stay in the Republic as contemplated in Article 31(1) of the 1951 United Nations Convention Relating to the Status of Refugees.

(4) A judicial officer must require any foreigner appearing before the court, who indicates his or her intention to apply for asylum, to show good cause as contemplated in subregulation (3).

(5) An applicant must indicate his or her language of proficiency on Form 2 (DHA-1590), which language will be presumed to be the language which the applicant understands.

(6) All information contained on Form 2 (DHA-1590) or any documentation submitted together with, or in support of, the application for asylum, is binding on the applicant and may not be amended.

(7) A Refugee Status Determination Officer may require any person who made an assertion in his or her application for asylum, to furnish him or her with proof or corroboration of the correctness of the assertion.

(8) If at any stage a Refugee Status Determination Officer reasonably suspects that a child, who has been declared a dependant in any application for asylum, has been trafficked or smuggled into the Republic, he or she may require proof of relationship in the form of the results of a paternity test, and must refer such child to into the care of a representative of the Department of Social Development.

(9) Any person who fails to declare a dependant child as contemplated in section 21(2A) and

subsequently returns to the Refugee Reception Office to make a claim in terms of section 3(c) of the Act on behalf of such dependant child, he or she shall be required to provide proof of relationship in the form of the results of a paternity test, failing which, such child shall be dealt with as an unaccompanied child as contemplated in regulation 10.

(10) When required to do so by a Refugee Status Determination Officer, the principal asylum seeker or a dependant must provide proof of their relationship.

(11) Each dependent included on an asylum application shall be issued an asylum seeker visa and must comply with the terms of the visa.

(12) Any dependent of an asylum seeker contemplated in section 3(c) of the Act must appear in person for a hearing before a Refugee Status Determination Officer.

Application for asylum – Overview 

8. (1) An application for asylum in terms of section 21 of the Act must―

(a) be made in person by the applicant upon reporting to a Refugee Reception Office or on a date allocated to such a person upon reporting to the Refugee Reception Office;

(b) be made in a form substantially corresponding with Form 2 (DHA-1590) contained in the Annexure;

(c) be submitted together with―

(i) a valid asylum transit visa issued at a port of entry in terms of section 23 of the Immigration Act, or under permitted circumstances, a valid visa issued in terms of the Immigration Act;

(ii) proof of any form of a valid identification document: Provided that if the applicant does not have proof of a valid identification document, a declaration of identity must be made in writing before an immigration officer; and

(iii) the biometrics of the applicant, including any dependant.

(2) Any person who submits a visa other than an asylum transit visa issued in terms of section 23 of the Immigration Act must provide proof of change of circumstances in the period between the date of issue of the visa and the date of application for asylum.

(3) Any person who upon application for asylum fails at a Refugee Reception Office to produce a valid visa issued in terms of the Immigration Act must prior to being permitted to apply for asylum, show good cause for his or her illegal entry or stay in the Republic as contemplated in Article 31(1) of the 1951 United Nations Convention Relating to the Status of Refugees.

(4) A judicial officer must require any foreigner appearing before the court, who indicates his or her intention to apply for asylum, to show good cause as contemplated in subregulation (3).

(5) An applicant must indicate his or her language of proficiency on Form 2 (DHA-1590), which language will be presumed to be the language which the applicant understands.

(6) All information contained on Form 2 (DHA-1590) or any documentation submitted together with, or in support of, the application for asylum, is binding on the applicant and may not be amended.

(7) A Refugee Status Determination Officer may require any person who made an assertion in his or her application for asylum, to furnish him or her with proof or corroboration of the correctness of the assertion.

(8) If at any stage a Refugee Status Determination Officer reasonably suspects that a child, who has been declared a dependant in any application for asylum, has been trafficked or smuggled into the Republic, he or she may require proof of relationship in the form of the results of a paternity test, and must refer such child to into the care of a representative of the Department of Social Development.

(9) Any person who fails to declare a dependant child as contemplated in section 21(2A) and subsequently returns to the Refugee Reception Office to make a claim in terms of section 3(c) of the Act on behalf of such dependant child, he or she shall be required to provide proof of relationship in the form of the results of a paternity test, failing which, such child shall be dealt with as an unaccompanied child as contemplated in regulation 10.

(10) When required to do so by a Refugee Status Determination Officer, the principal asylum seeker or a dependant must provide proof of their relationship.

(11) Each dependant included on an asylum application shall be issued an asylum seeker visa and must comply with the terms of the visa.

(12) Any dependent of an asylum seeker contemplated in section 3(c) of the Act must appear in person for a hearing before a Refugee Status Determination Officer.

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UK Skilled Worker Visa Immigration Route

SA Migration | 30 November 2022

Are you looking to make a career move ? Why not consider a career in the UK under the Skilled Worker visa route.

UK Skilled Worker Visa Immigration Route

The Skilled Worker Immigration Route is one of the most popular immigration routes for South Africans coming to the UK. There are, however, many misconceptions about how the route works in practice. The consultants at SA Migration have subsequently compiled some answers to the most Frequently Asked Questions on the Skilled Worker Visa Route. 

Do I first need to secure employment before I can apply for the Skilled Worker Visa?

Yes. You first need to secure employment in one of the eligible Skilled Worker occupations with a UK registered sponsor employer before you are eligible to apply for it.

The sponsor will provide you with a Certificate of Sponsorship (CoS). This CoS will enable you to apply for the Skilled Worker visa. 

Can my spouse work in the UK if they accompany me on a Skilled Worker Visa?

Yes. Your spouse or partner can apply to accompany you to the UK as your dependant. If your spouse or partner is successful in their application, they will be able to work without any restrictions in the UK. 

Do I require a Police Clearance Certificate for a Skilled Worker Visa application?

Some occupation codes, mainly in the teaching and medical industries, require a Police Clearance Certificate. Your SA Migration consultant will be able to advise in every case. 

How soon do I need to travel to the UK once my Skilled Worker Visa has been granted?

Initially, you will receive a travel vignette valid for three months. You will have to travel to the UK within these three months of validity. However, you cannot start working for your UK employer more than 28 days from your employment start date as per the Certificate of Sponsorship.

Do the same rules apply if I want to apply for a Skilled Worker Visa for Guernsey instead of the UK?

 Yes, except for a few differences. You still need to first secure employment in one of the eligible occupations with an eligible employer. However, you will not be required to pay the National Health Surcharge. Also, instead of having to obtain a Certificate of Sponsorship from the UK employer, your employer needs to apply for an Employment Permit from the Population Management Department and a Work Permit from the Immigration Department. These permits must be submitted with the entry clearance (Skilled Worker Visa) application. Your SA Migration consultant will be able to assist you. 

Does the Skilled Worker Visa lead to British Citizenship?

Yes. After spending five years in the UK on the Skilled Worker Visa, you can qualify to apply for Indefinite Leave to Remain. However, holders of Skilled Worker Visas have to fulfill very specific requirements regarding the minimum salary threshold when applying for ILR. Please speak to your SA Migration consultant for specific advice in your case and to plan your route to British citizenship. 

www.samigration.com

Are you a Kenyan citizen forced to renounce your British citizenship?

SA Migration | 30 November 2022

If as a Kenyan citizen you were ever forced to renounce your British citizenship, SA Migration can help you trace your case.

If you were ever forced to renounce your British citizenship, SA Migration might be able to assist you. SA Migration successfully applied for our client’s British citizenship after she was forced to renounce her British citizenship.

Facts of the Matter

Our client was born in Kenya and was forced to renounce her British citizenship on or before her 23rd Birthday. 

Section 2 of the original Independence Constitution of Kenya stated that every person born in Kenya after the 11th of December 1963 shall become a Citizen of Kenya at the date of his birth, provided that a person shall not become a Citizen of Kenya by virtue of the following:

• Neither of their parents is a Citizen of Kenya

• His/her father is a citizen of a country with which Kenya is at war and the birth occurs in a place then under occupation by that country. 

This Section was later repealed, and Section 89 was introduced in the Constitution of Kenya. However, this Section 89 was found to be incompatible with government policy. 

All would have been in order as the British Nationality Act 1981 had made a similar change, but for the background to the measure, the mythology employed to bring it about and its operation in practice.

The public in Kenya was uninformed about this matter. The Bill seeking to amend the Constitution was published in the Kenya Gazette on 10 May 1985. Basically, it merely stated that “part of the provisions had been misinterpreted to mean that it did not matter if neither of the person’s parents was a Kenyan citizen as long as the father was not a diplomat”. 

This was a very curious distortion of what had, in fact, already happened for some time, which was that the immigration authorities had taken to denying the claim to Kenyan Citizenship to those born after independence unless they could show that at least one of their parents was a Citizen of Kenya at the time of their birth, contrary to the view expressed by the Attorney General then.

The Immigration Authorities indeed ignored this. 

At the Independence of Kenya, a large section of Kenya’s population retained British Nationality. Children born to those of them who were Citizens of the United Kingdom and Colonies themselves became such Citizens by descent under Section 5 of the British Nationality Act 1948. 

Therefore, if an applicant was born in Kenya before 19 July 1985, the date of commencement of the 1985 Act, then the British view is that the person concerned is a citizen as well as a British Overseas Citizen. Notwithstanding that the Kenyan authorities may refuse to recognize such a person to be a Citizen of Kenya under the 1985 Act.

The only way around this obstacle was for the applicant to wait until the age of 23 and then rely on the provisions of Section 97(1) of the Kenyan Constitution. 

According to this provision a person who upon attaining the age of 21, is a citizen of Kenya and also a citizen of some other country ceases to be a citizen of Kenya on the specified date unless she/he has renounced such other citizenship and taken an oath of allegiance to Kenya, the specified date in this connection being the attainment by that person of the age of 23. 

People in this position are thus put in a most unfair situation.

They are not regarded as citizens of Kenya and are expected to regularise their immigration status to Kenyan authorities. 

In the matter of Dubai Bank Ltd v Galadari & others, it was held that if the issue as to whether any of the persons in the previous principals was or was not a Citizen of Kenya were to arise in the context of proceedings in an English Court, in the circumstances discussed above, then the court could reach its conclusion on the matter irrespective of an official certificate, if there is one, from the Kenyan authorities as to the status of the persons concerned.

Based on the injustice at that point in time, we were able to again and successfully apply for our client’s British citizenship. 

www.samigration.com

Good news to Migrants in the UK with Children

The South African | 29 Nov 2022

Parents who want to apply for British citizenship for their children but cannot afford can now do it for free.

Good news to Migrants in the UK with Children: Image: Adobe stock

This past month there were two developments that bode good news for migrants in the UK with children.

Waiver of British Citizenship Fees for Children

Parents who cannot afford the UK Home Office application fee for British citizenship for their children can now apply to get it for free. The fee waiver applications opened on 16 June 2022.

The current Home Office application fee for British Citizenship for children is a hefty £1 012.

One can apply to get the fee waived if one can prove that the fee is unaffordable. You must prove that paying the fee would compromise the child’s essential living needs. Essential living needs will, among others, include Housing, utilities, food, clothing, non-prescription medication, travel costs etc.

Parents applying for the fee waiver will thus have to provide a lot of supporting documents to prove this.

Children in care will have a total exemption from paying the application fee.

Free School Meals Extended to Children of Migrants with No Recourse to Public Funds

Children of migrants in the UK with no recourse to public funds (NRPF) will now be eligible to free school meals. However, this is subject to maximum income thresholds.

Eligible groups will include inter alia the children of Work visa holders; Spousal visa holders; Student visa holders and Zambrano carers

The maximum income threshold will differ depending on the number of children in a household and the location of the family.

The annual household income threshold for NRPF families able to work is:

• £22 700 for families outside of London with one child

• £26 300 for families outside of London with two or more children

• £31 200 for families within London with one child

• £34 800 for families within London with two or more children

SA Migration Immigration Consultants are delighted that the UK Government has permanently extended the free school meals to children of migrants with no recourse to public funds.

www.samigration.com