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.

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terms of s 11(6) of the Act which is no longer valid by virtue of the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