Foreign
nationals file class action against Home Affairs to avoid separation from
their children
Groundup 26 September 2021
Forced to stay in unbearable
marriages and faced with the constant fear of being separated from their
children, three foreign nationals have asked the Cape High Court to declare
parts of the Immigration Act unconstitutional as it requires them to leave the
country if they get divorced and leave their children behind.
In a desperate fight to stay with their kids, three single
parents faced with having to leave South Africa immediately without their
children, have filed a class action suit against Department of Home Affairs in
the Cape High Court.
In court papers the parents, represented by immigration
attorney Gary Eisenberg, described how they are forced to stay in marriages
characterised by verbal abuse, drug addiction and abandonment to remain with
their children as South Africa’s immigration laws make no provision for their
situation.
The Department has indicated that it will oppose the legal
action.
The Immigration Act does not provide a visa for the purpose
of parenting South African children by foreign nationals once a spousal
relationship breaks down. As a result foreigners must leave the country
regardless of whether they are the primary caregiver of the children.
The court has been asked to declare these parts of the law
unconstitutional and order Parliament to remedy the defects and also for an
order that will allow for the three parents to stay in the country.
The names of the applicants are known but withheld to
protect the identities of their children.
One of the applicants, a 45-year old German woman, from
Kommetjie said she has two sons, aged 10 and 11, who live with her.
She said her husband became aggressive and abusive. “Things
have deteriorated to such an extent that the children have no desire to see
[him]…He is an absentee father and I am, in effect, a single mother.”
She said while her husband provides minimal financial
support she cannot get a divorce as she fears she will be forced to leave the
country without her children who are South African citizens.
Her visa will expire in November.
“I should be leaving South Africa immediately … it would be
tantamount to abandoning my children.”
She said while she applied for permanent residence her
application will likely not be finalised before 2023.
“I am at a loss for what to do,” she added. “It is [the
children] who will suffer the most.”
Another applicant, a 46-year old French citizen, has
separated from his wife after she became addicted to tik and alcohol and had
abandoned him and their two sons.
He is currently in South Africa on a visitors visa and is
not allowed to work.
“I can never forgive her for her final abandonment of our
two minor children, a trauma that will take them a long time to resolve. I
cannot again leave them alone … I am their father,” he said.
The third applicant, a 30-year old boxing coach from
Zimbabwe was declared “undesirable” in South Africa and has been banned from
returning until 2024.
He has a two year old son and was paying for the flat where
the boy was living with his mother, paid maintenance and saw him every day.
In April 2019 he was apprehended at the airport and in terms
of a new directive he was declared undesirable for “overstaying” and deported.
He can only return to South Africa legally in April 2024.
“I was forced by the policewoman and her superior, and by
Passport Control officials, to buy a one-way air ticket to Zimbabwe. I was
given no opportunity to make representations … if I did not leave that day, I
would be incarcerated and I preferred to leave rather than to sit in jail.”
He admits that he returned to South Africa later in 2019 but
did not pass “through passport control.”
“This was the only way I could continue to provide for [my
son] and remain part of his life.”
He has also requested the court that this new directive, be
declared invalid and set aside as it denies people access to a administrative
action if they wish to dispute the finding that they are undesirable.
No date has yet been set for the hearing
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