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terms of s 11(6) of the Act which is no longer valid by virtue of the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