High Court finds spousal visa rules unconstitutional

The Western Cape High Court has ruled that certain provisions of the Immigration Act and its regulations are unconstitutional. Archive photo: Ashraf Hendricks

• The Western Cape High Court has found that compelling foreign spouses and caregivers to leave the country if their relationship with their South African spouse ends is unconstitutional.
• Judge Mark Sher said the spousal visa rule was in conflict with parental duty and the rights of the child.
• Home Affairs opposed the case saying the rules were there to prevent foreigners gaining entry to South Africa through sham marriages.

A judgment by the Western Cape High Court means that foreigners who are parents and caregivers of South African children will be allowed to remain in the country after their relationships with their South African spouses come to an end.

Judge Mark Sher has ruled that certain provisions of the Immigration Act and its regulations are unconstitutional.

Among the applicants in the case before him were a 47-year-old German woman, who is a mother of two, a French baker who has become his three children’s sole guardian after his wife abandoned them, a British company executive, a Kenyan media researcher and a Swiss carpenter.

All had been residing and working in South Africa on “spousal visas”, which had been extended from time to time but were no longer valid because of the termination of their relationships.

They all have children who are citizens. “All have been dutiful and supportive parents and caregivers to their children, sharing parental responsibilities,” noted Judge Sher.

The applicants complained that because their relationships had ended, their temporary residence rights in terms of the spousal visas issued to them, had automatically expired. They were no longer allowed to work or live in South Africa and must “depart”, failing which they would be deported.

Should they wish to apply for any other form of visa, such as a visitor or relative visa, they would have to do so from outside South Africa. Visitor and relative visas also do not allow them to work in the country.

The applicants said this was an unjustifiable limitation of their constitutional rights and those of their children to dignity, equality and parental care. It also offended the “best interests of the child” principle.

“They point out that while their spousal relationship might have come to an end, their parental relationships have not,” said Judge Sher.

“In effect, the applicants have the Hobson’s Choice of either breaking the law by continuing to live and work in the country in order to maintain their parental responsibilities and relationships and contact with their children, or uphold the law by leaving the country, therefore breaching their parental duties and severing their contact and relationships with their children.”

“I am of the view that the effect of the provisions in issue results in a violation of both their rights to dignity as well as those of their children, and the children’s constitutional and parental rights,” the judge said.

The Minister and officials of the Department of Home Affairs opposed the application saying that the provisions were there to prevent abuse by foreigners who “entered into sham marriages” to obtain rights of entry, residence and work.

They denied that the provisions in the Act were discriminatory but said any rights limitation was justified and reasonable and commonly found in many open and democratic countries throughout the world.

But Judge Sher said the respondents had offered up very little, if any substance, about the infringement of parental rights and right to dignity. For example, they had not shown why it was necessary for foreign parents to leave the country and their children in order to regularise their status.

“In order to ensure that the country is not overburdened with additional South African children who are destitute and need to be provided for at state expense, the contribution which is provided by their foreign parents is surely a necessary and needed one, as long as they were working in the country lawfully at the time of the termination of their spousal visa.

“One can expect that they should, if possible, continue to be accommodated in the country so that they can continue to support their children and care for them, both financially and emotionally,” said Judge Sher.

He declared as unconstitutional sections of the Act that: require a foreigner who holds a spousal visa, who has parental responsibility and rights, to leave South Africa on the termination of the relationship; require such a person to make an application for a change in status from outside South Africa; do not allow a foreigner who may be eligible for a visitors or relatives visa to work in South Africa in order to discharge their parental rights and responsibilities.

Judge Sher suspended the declaration of invalidity for 24 months to enable Parliament to remedy the inconsistencies but ordered a “reading in” of the provisions in the interim.

One applicant, a Zimbabwean boxing coach, sought an order setting aside the declaration of him as an “undesirable person”.

Judge Sher declined to grant this order. He said the man had been in the country illegally since 2012 and had shown a “blatant disregard for the law”.

“Although the Court’s sympathies lie with his child, assisting him would encourage and effectively grant a licence to foreigners to enter the country illegally, and to live and work here illegally until the moment when they have a child who is a South African citizen or permanent resident, which they need to support, which they could then use to legalise their stay.

“No country that functions in terms of the rule of law can endorse such a stance.”

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