High court judge finds spousal visa rules unconstitutional

Published Date: June 14, 2022

Gone are the days where spousal visas of a foreigner, who has parental responsibility and rights in South Africa, expire upon the termination of the spousal relationship which formed the basis of the visa.

Foreign parents and caregivers of South African children shall now be allowed to remain in South Africa, even after their relationship with their South African spouse has come to an end.

This is as a result of a ground-breaking judgement by Honourable Justice Sher in the Western Cape High Court, in which certain provisions of the Immigration Act and the Regulations thereto were declared unconstitutional. The relevant provisions have been found to be a violation of the dignity and other constitutional and parental rights of foreign parents and children.

Prior to the judgement, foreign parents whose relationships with their South African spouses had come to end, were no longer allowed to work or live in South Africa, and were forced to leave the country, or face deportation.

Honourable Justice Sher remarked as follows:

“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 to uphold the law by leaving the country, thereby breaching their parental duties and severing their contact and relationships with their children.”

The Judge went on to state that:

One can expect that they [foreign parents] 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.

This is a welcomed solution to avoid a South Africa which is overburdened with children who are destitute and need to be provided for at state expense, as a result of the absence of one or both of their parents, a situation which is beyond their control.

The declaration of invalidity has been suspended for 24 months to allow Parliament an opportunity to remedy the inconsistencies and the new provisions will, in the interim, be read into the Act.

Courtney Elson
Associate | Attorney

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