The judgment is a significant victory for families that faced
potential separation. It may not seem like a big deal to have to
leave the country to apply for a visa, but, besides being a
financial burden for families, the process can take a long time,
leaving spouses apart for months.
Background
The applicants in the case were two families that had been
affected by the Immigration Act and its Regulations. These laws
require a foreign national whose visa status is being changed to
apply for a new visa from outside South Africa.
Robinah Nandutu is a Ugandan citizen who entered South Africa on a
visitor’s visa. When she arrived in South Africa, she was pregnant
and gave birth shortly after. She travelled to South Africa to
join her partner, James Tomlinson, a British citizen, who has
permanent residence in South Africa. He is the father of their
child. Nandutu married Tomlinson soon after she arrived in South
Africa.
After they she got married, Nandutu sought to change her visa
status from a visitor’s visa to a spousal visa. However, her
application for a spousal visa was rejected. The reason for the
rejection was because the Immigration Act prevents a person from
changing their visa status while in South Africa unless there are
exceptional circumstances.
The Immigration Regulations refer to two categories of
“exceptional circumstances”. The first is if a person needs to
access emergency medical treatment. The second is if a person is
the child or spouse of someone who holds a work or study visa and
wants to accompany them in South Africa.
Nandutu appealed the rejection of her application to the Director-
General and the Minister. Both of these appeals were rejected.
The other applicants were Ilias Demerlis and Christakis Ttoffali
who are in a permanent life partnership. Demerlis is a Greek
national who arrived in South Africa on a visitor’s visa to join
his partner Ttofalli. He later applied for a spousal visa, but
this was rejected for the same reasons that Nandutu’s application
was.
The High Court Judgment
The applicants launched an application in the Western Cape High
Court to challenge the regulations. They argued they were invalid
because the exceptional circumstances it lists do not include
being a foreign spouse or child of a South African citizen or
permanent resident.
Also, they argued that making an application from outside South
Africa infringed their right to dignity. This is because it leads
to a separation of families.
The High Court dismissed the application because in its view, the
regulations serve legitimate purposes: deterring fraud and
preventing criminals from taking advantage of the immigration
system. Also, the Immigration Act provided a remedy for the
applicants in this case: they could apply to the Minister to waive
the requirement of having to apply from their country of origin.
Why the Constitutional Court reversed the High Court decision
The applicants appealed to the Constitutional Court. Here, they
argued that the regulations infringed their right to dignity. They
argued that separating their family infringes the rights of
children especially the principle of the best interests of the
child.
The applicants relied on a previous Constitutional Court judgment
called Dawood v Minister of Home Affairs, where the court found
that provisions which require a foreign spouse to leave the
country to apply for an immigration permit infringe the right to
dignity and family life.
The Department of Home Affairs and the visa processing company VFS
were the respondents. They argued that there were important
national security reasons for the prohibition on changing one’s
visa from within South Africa.
In any case, they argued, the Minister of Home Affairs may waive
the requirement of applying from outside South Africa. These
waivers are considered on a case-by-case basis.
There were four main issues which the court had to determine.
First, whether the court’s finding in the Dawood judgment was
applicable to this case.
Second, whether a change from a visitor’s visa to a spousal visa
amounted to a change of visa status.
Third, whether the regulations infringed the right to dignity and
whether this infringement was justifiable.
Fourth, whether the Minister was empowered to waive the
requirement of applying from outside South Africa.
The applicability of Dawood
In the Dawood case, the Constitutional Court had to decide the
constitutionality of the Aliens Control Act (now

repealed) which
required applicants for immigration permits to be outside South
Africa when making their applications. The applicants in that case
were foreign nationals who were married to South African citizens
who would have to leave the country to apply for an immigration
permit.
The court found that because many spouses were too poor to
accompany their spouse overseas, the Act resulted in many families
being separated. Separating families infringes the right to
dignity because the right to dignity includes the right to sustain
and maintain marriage relationships, the court said.
The court found that the same reasoning that applied to Dawood
applied to this case. It also found that it was clear that the
exceptional circumstances listed in the regulations did not
include the circumstances that the applicants were in.
Change of Status
A visitor’s visa is different from a spousal visa because the
rights, conditions and obligations which attach to each category
of visa are different, the court said. Changing from one category
of visa to another amounted to a change of status which forces the
person to apply for the new visa from outside South Africa.
Right to dignity
The court ruled that the regulations infringed the applicants’
right to dignity for the same reasons outlined in Dawood. Also,
the court pointed out that the regulations violated the best
interests of the child principle because a child would be
separated from one of their parents (the foreign spouse) who would
have to leave the country.
Minister’s powers
The court found that the minister was not empowered to waive the
requirement of applying from outside South Africa because it was a
legislative requirement and not a regulatory one. This means the
minister may only waive a requirement which is provided by the
regulations and not a requirement in the Immigration Act.
Is the limitation justified?
Home Affairs submitted two main reasons for the exclusion of
foreign spouses from the exceptional circumstances provided for by
the Regulations.
First, South Africa is a sovereign state that may decide who
enters the country and what the requirements are to remain in its
borders.
Second, the exclusion deters people from fraudulently overstaying
in South Africa by entering the country on a visitor’s visa and
subsequently marrying a citizen or permanent resident.
But the court pointed out that Home Affairs failed to establish a
link between the purpose of the exclusion and the means adopted to
achieve it. Also, Home Affairs failed to show that this approach
was proportionate to the impact on the applicants’ rights.
In any event, those who apply for a spousal visa are already
required to comply with certain security checks and enquiries, the
court said. Home Affairs had not established why these measures
were insufficient.
As far as fraudulent marriages are concerned, Home Affairs was
capable of conducting investigations to detect these, the court
said.
Minority dissent
A minority of the Constitutional Court judges would have rejected
the application. These judges argue that the right to remain,
reside and enter the country is a right that only citizens have.
Although the law provides accommodation for refugees and asylum
seekers the general rule remains the same.
The minority was sceptical that the requirement to apply for a new
visa from outside South Africa would prejudice or endanger the
applicants in any way. Instead, they contended that the right of
non-citizens to enter and remain in the country is best decided by
the executive as long as it uses this discretion in a fair and
reasonable manner.
Remedy
The court declared the Immigration Regulations unconstitutional.
But it suspended this order and gave Parliament two years to
correct this defect. In the interim, the court ruled that the
regulations should be read to include the fact that a person is
the spouse or child of a South African citizen or permanent
resident as an exceptional circumstance. If Parliament fails to
amend the legislation in time, the court’s variation of the
legislation will become final.
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