What is the effect of divorce on a permanent resident permit?

A client asked: What is the effect of divorce on a permanent resident permit when a US citizen is married to a South African citizen and was granted permanent residency and a SA ID document on the basis of the marriage?

Permanent residence under the spousal category is issued in terms of section 26(b) of the Immigration Act of 2002:

“Subject to section 25 and prescribed requirements, the Director-General may issue a permanent residence permit to a foreigner who has been the spouse of a citizen or permanent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists:  Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;”

This is read with regulation 23(6):

“A foreigner contemplated in section 26(b) of the Act who has been issued with a permanent residence permit shall, within the last six months of the second year following the issuing of that permit, avail himself or herself for an interview at any office of the Department.”

In practice however, there is no way to comply with this regulation – I have never heard of any Department of Home Affairs regional office that conducts these interviews.

Section 28(b) dealing with withdrawal of permanent residence:

“The Director-General may withdraw a permanent residence permit if its holder has failed to comply with the terms and conditions of his or her permit;”

In terms of section 26(b) there would be no impact on the permanent residence (and subsequent green ID) if the relationship ended more than two years after the permanent residence was issued.  If it ends within the two year period, either party could inform the Department of Home Affairs, but it is usually the South African citizen / initial permanent residence permit holder spouse that the application had been made under, who attends at a regional office to inform immigration inspectorate of the breakdown of the relationship on affidavit.

Inspectorate will then contact the foreign national to appear before them and the information will be forwarded to the office of the Director-General.  As it is at the Director-General’s discretion, there have been cases where the permanent residence was not withdrawn, despite the end of the relationship, e.g. if there are minor children who would benefit from having the foreign national parent to remain in the country.

 

The General Work Visa in South Africa is one of five categories available for foreign workers seeking employment in the country. Unlike other work visas, the General Work Visa requires that employers demonstrate a genuine effort to fill the vacancy with South African citizens or permanent residents.

Key Facts About the General Work Visa:

1. Purpose of the General Work Visa:
   This visa aims to protect the South African labor market by ensuring that foreign workers occupy positions that cannot be filled by locals, while also allowing companies to recruit internationally when necessary.
2. Eligibility Criteria:
   Applicants must first confirm they do not qualify for other types of work visas, which can be assessed through our complimentary eligibility assessment. Those being transferred from an international branch or whose employers hold a corporate work visa are not eligible.
3. Visa Requirements for Spouses and Partners:
   Spouses and partners of South African citizens or permanent residents do not need a General Work Visa. Instead, they should apply for a spousal or partner visa, which can be endorsed to allow employment.
4. Basic Application Requirements:
   To apply for a General Work Visa, the following documentation is necessary:

• Job offer and acceptance
• Curriculum Vitae (CV)
• Proof of the employer's recruitment efforts for South African citizens or permanent residents
• SAQA registration to verify qualifications
• Evidence of good health and character

Application Submission Locations:
Applications must be submitted at an embassy or consulate in the applicant’s home country, while renewals can be completed in South Africa.

Employment Rights for Spouses and Partners:
Only the holder of a General Work Visa is authorized to work. Accompanying spouses or partners must apply for their own work visas if they wish to be employed. Children will also need separate study visa applications.

Processing Timeframes:
The processing time for a General Work Visa typically ranges from 8 to 12 weeks, although delays are common. Preparing the application may also take additional time due to the need for job advertisements and SAQA registration.

Validity Period:
The General Work Visa is usually valid for a period of 2 to 4 years and can be extended by applying for renewal prior to its expiration.

Pathway to Permanent Residency:
While immediate applications for permanent residency are not permitted, holders of a General Work Visa may apply for permanent residency after maintaining their visa for an uninterrupted period of five years.

Job Offer vs. Work Visa:
Prospective immigrants often face challenges securing employment without a work visa. To enhance your chances, begin the process by obtaining your SAQA registration and inform potential employers that you have initiated the visa process with an immigration consultant.

Next Steps:
Explore the various work visa options available to you. We encourage you to speak with one of our expert client managers for a complimentary, obligation-free assessment.

We look forward to consulting with you regarding your eligibility for a visa or permit and addressing any questions you may have, all at no cost. Contact us today to begin your journey toward securing a General Work Visa in South Africa.

 

The short answer
Applying for birth certificates can be complicated. You may need help.
The whole question
I am a Zimbabwean lady with three children with a South African man. We are not married. How can we apply for birth certificates for our children?
The long answer
Thank you for your email asking how you can apply for birth certificates for your three children with a South African man that you are not married to.
If you just needed copies of their birth certificates, you would fill in Form B1-154 at Home Affairs and pay a  fee for each application. But if they have never had birth certificates, this is how it works:
All children born in South Africa must be registered within 30 days of their birth in terms of the Births and Deaths Registration Act of 1992. The parents are then issued with an unabridged birth certificate which contains the full details of the child and its parents.
If a child is registered after 30 days but before 1 year, you must complete and submit Form B1-24 to Home Affairs along with written reasons why the birth was not registered. This will be sent to the Home Affairs Head Office to get an ID number and to keep a record of it.
It gets a lot more complicated if a child is registered after 1 year but before 15 years. In that case, you will need to complete and submit Form B1-24/1 along with written reasons why the birth wasn’t notified in the 30-day period. You will also have to submit as many of the following documents as possible to confirm the child’s identity and status:
* A certificate from the hospital or maternity home where the child was born. The certificate must be signed by the person in charge and contain the institution’s official stamp.
* Official confirmation of the child’s personal details taken from the register of the first school attended by the child. Again the confirmation must be on the school’s official letterhead, signed by the principal with the official school stamp on it.
* The child’s baptismal certificate
* Sworn affidavits by you and the child’s father
* A clinic card
* School reports and any other documents that help to prove your child’s identity.
They will interview you (and / or the father?) and your fingerprints will be verified against the national database. If successful, the application will be forwarded to the Home Affairs Head office to allocate an ID number and keep a record of it.
If one of the children is over 15 years, they must apply for an ID (Form B1-9) as well as their birth application. Forms DHA-24, DHA-24/A x 2 and DHA -288 must be completed to register the birth. You must also submit supporting documents (as listed above) as well as written reasons for not registering the birth within 30 days.
As all the requirements above are complex and demanding, and dealing with Home Affairs is never easy, you may want to take advice from one of the following organisations:

In terms of the Immigration Act of South Africa, a permanent relationship is considered to have broken down if certain circumstances are met. Here's a breakdown of what constitutes a breakdown:

1. Divorce or separation:
* A divorce decree or a court order confirming the separation has been granted.

2. Irreconcilable differences:
* The couple has been living apart for a continuous period of at least two years.
* The couple has been living apart for a continuous period of at least one year, and one partner has filed a lawsuit for divorce or separation.

3. Abuse or neglect:
* One partner has been physically, emotionally, or financially abusive to the other.
* One partner has neglected the other, leading to a breakdown in the relationship.

4. Abandonment:
* One partner has abandoned the other for a continuous period of at least one year.

5. Death of a partner:
* The death of one partner, in which case the surviving partner may apply for a change of status or a permanent residence permit.

6. Other circumstances:
* Any other circumstances that demonstrate the relationship has broken down irreconcilably, such as:
+ Infidelity
+ Addiction
+ Criminal behavior
+ Mental or physical incapacity

Documentation required:

To prove a breakdown of a permanent relationship, the following documentation may be required:

• Divorce decree or separation agreement
• Court orders or legal documents
• Affidavits from the couple or witnesses
• Police reports or medical records (in cases of abuse)
• Death certificate (in cases of a partner's passing)

Please consult the South African Department of Home Affairs or an immigration expert for guidance on specific requirements and procedures.

 

The breakdown of a permanent relationship, in the context of immigration law, typically refers to the dissolution of a relationship that was used as the basis for a visa or residency application. The specifics can vary depending on the country and its immigration laws, but here are some general points that might be relevant:

1. Definition of Permanent Relationship: In many immigration systems, a permanent relationship is often defined as a long-term, committed relationship between two people, such as a marriage or a de facto partnership. This relationship must meet certain criteria to qualify for immigration benefits, like spousal visas or partner visas.
2. Grounds for Breakdown: The breakdown of a permanent relationship generally means that the relationship has ended or is no longer considered genuine or ongoing. This could be due to:

• Divorce: Legal dissolution of marriage.
• Separation: The couple has physically separated and no longer lives together as a couple.
• Irreconcilable Differences: Significant issues or disputes that make it impossible to continue the relationship.

Immigration Consequences: If a permanent relationship breaks down, it can affect the immigration status of the individual who was in the relationship. For example:

• Visa Cancellation: If a visa was granted based on the relationship, it might be subject to review or cancellation if the relationship ends.
• Residency Status: The person may lose their right to remain in the country if their residency was contingent on the relationship.

Notification and Evidence: Often, there are requirements to notify immigration authorities of the breakdown of a relationship. This could involve providing evidence of the breakdown and possibly undergoing a review of the immigration status.

Legal and Practical Steps: The affected person might need to seek legal advice to understand their rights and obligations. They might also need to explore alternative visa options or residency pathways if their current status is jeopardized.

Country-Specific Rules: Each country has its own rules and processes. For instance, in Australia, the Immigration Act requires partners to notify the Department of Home Affairs if their relationship ends. In the UK, the Home Office may review the validity of a visa if the relationship used to obtain it breaks down.

If you’re dealing with a specific situation or need precise information, it’s a good idea to consult an immigration lawyer or expert familiar with the relevant country’s immigration laws.

How do judicial opinions influence the handling of marriages of convenience

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Answer

Judicial opinions play a significant role in shaping the handling of marriages of convenience, particularly in the context of immigration law in South Africa. These opinions provide legal precedents and interpretations that influence how such marriages are perceived and treated by the courts and immigration authorities. Here are some key ways in which judicial opinions impact the handling of marriages of convenience:

Establishing Legal Precedents

1. Defining Marriages of Convenience: Key cases, such as Washkansky v Washkansky (1940) and Martens v Martens (1952), have established important legal principles regarding the nature of marriages of convenience. In Washkansky, the court highlighted concerns about evasion of immigration laws, indicating that marriages entered into solely for immigration benefits are viewed with skepticism and may not be recognized as valid under immigration law

·  .

·  Criteria for Validity: The courts have emphasized that a valid marriage must be based on genuine consent, cohabitation, and the provision of conjugal rights. In Martens, the court ruled that the marriage, although legally valid, was entered into with the primary intention of circumventing immigration laws, which undermined its legitimacy

1. . This establishes a framework for evaluating the authenticity of spousal relationships in immigration contexts.

Impact on Immigration Policy

1. Judicial Scrutiny of Immigration Practices: Judicial opinions have prompted the government to reconsider its policies regarding marriages of convenience. Courts have recognized the potential for abuse of immigration laws through fraudulent marriages, leading to calls for stricter regulations and enforcement mechanisms to combat such practices

·  .

·  Protection of Rights: Recent judicial rulings have also focused on the rights of individuals involved in marriages of convenience, particularly concerning their dignity and family life. For instance, courts have ruled that the right to family life is a core component of human dignity, which must be balanced against immigration enforcement measures

1. . This perspective influences how immigration authorities handle cases involving foreign spouses of South African citizens.

Public Policy Considerations

1. Public Policy and Human Dignity: Courts have articulated that recognizing marriages of convenience can conflict with public policy and the sanctity of marriage. For example, in Martens, the court noted that allowing such marriages to stand could undermine the institution of marriage itself and the rights associated with it

·  . This judicial stance encourages immigration authorities to scrutinize marriages more closely to prevent the exploitation of immigration benefits.

·  Legislative Reforms: Judicial opinions often serve as catalysts for legislative changes aimed at addressing the complexities of marriages of convenience. The courts' interpretations of existing laws can highlight gaps and inconsistencies, prompting lawmakers to revise immigration and family law to better address these issues

1. .

In summary, judicial opinions significantly influence the handling of marriages of convenience by establishing legal precedents, shaping immigration policy, protecting individual rights, and guiding public policy considerations. These opinions underscore the importance of genuine relationships in the context of immigration and the need for robust mechanisms to prevent fraudulent practices

What are the key principles judicial opinions use to determine the validity of a marriage

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Answer

Judicial opinions play a crucial role in determining the validity of marriages, particularly in the context of South African law. Here are the key principles that courts typically use to assess whether a marriage is valid:

Key Principles for Determining Validity of Marriage

1. Consent: A foundational requirement for any valid marriage is the mutual consent of both parties. Courts emphasize that consent must be informed and voluntary, free from coercion or undue influence. In cases involving customary marriages, the courts have recognized that the understanding of consent may differ across cultural contexts, highlighting the need for flexibility in interpreting this principle

·  .

·  Capacity: Both parties must have the legal capacity to marry. This includes being of legal age (generally 18 years or older) and not being closely related (prohibited degrees of kinship). Courts assess whether the parties meet these legal requirements before validating a marriage

·  .

·  Formalities: Depending on the type of marriage (civil or customary), specific formalities must be observed. For example, customary marriages often require the negotiation and payment of lobolo (bride price) and may involve a ceremonial handing over of the bride. Courts have ruled that while these formalities are important, they can be flexible; for instance, the handing over of the bride may be waived in certain circumstances if both parties and their families agree

·  .

·  Public Policy: Courts consider the broader implications of recognizing a marriage, particularly regarding public policy. Marriages of convenience, which are entered into primarily to circumvent immigration laws, are scrutinized heavily. Courts have ruled that such marriages can be deemed invalid if they undermine the institution of marriage or are contrary to public morals (contra bonos mores)

·  .

·  Cohabitation and Consortium Omnis Vitae: The principle of consortium omnis vitae, which encompasses the right and duty of spouses to live together and support each other, is significant in determining the validity of a marriage. Courts may assess whether the couple has cohabited and fulfilled their marital obligations, as a lack of such fulfillment can indicate that the marriage is not genuine

·  .

·  Cultural Considerations: In the context of customary marriages, courts are increasingly recognizing the importance of living customary law, which reflects the dynamic and evolving nature of cultural practices. Courts may call upon expert witnesses to provide insight into the specific customs relevant to the marriage in question, ensuring that cultural practices are respected while adhering to constitutional principles of equality and dignity

·  .

·  Judicial Discretion: Courts have the discretion to evaluate the circumstances surrounding a marriage and to determine its validity based on the evidence presented. This includes considering the intentions of the parties involved and whether the marriage serves the interests of justice and equity

1. .

In summary, the validity of a marriage in South African law is determined through a combination of consent, capacity, adherence to formalities, public policy considerations, cohabitation obligations, cultural contexts, and judicial discretion. These principles ensure that marriages are recognized as genuine and meaningful social contracts, reflecting both individual rights and societal values.

 

 

The short answer
As you have refugee status you should not have any difficulty renewing your licence
The whole question
I am a refugee with a four year refugee status that I renew every four years.
My RSA driver's licence expired last week. I went to the traffic department to renew it and was told they no longer renew our licences without first speaking to Home Affairs. How does one get it all fixed?
The long answer
Thank you for your email about your difficulties renewing your driver’s licence.
As you have refugee status you should not have any difficulty renewing your licence.
It may be that a regulation 32(A) of the National Road Traffic Regulations promulgated in 2014 is creating a problem:
This regulation 32(A) says that “Motorists must verify all personal and address particulars with any motor vehicle or driving licence transaction.”
If, on the other hand, the problem is not to do with any technical detail, but is to do with Home Affairs’ notorious inefficiency and lack of capacity, you could ask the following organisation for assistance: