Woman has to leave behind spouse, kids

Source: Ilse Fredericks - CAPE ARGUS, 03/07/2015

Cape Town - A Zimbabwean woman who faces the "devastating prospect" of
being indefinitely separated from her South African husband and four
children has turned to the Western Cape High Court to challenge the
constitutionality of South Africa`s Immigration Act.
Lea Stewart, 39, moved to South Africa with her husband Heath and
their boys Joshua, Aiden, Luke and Ethan, all of whom have South
African citizenship, in May last year, hoping to secure a better
future for the children.
Among other things the family is seeking is to have a section of the
Immigration Act declared inconsistent with the constitution and
invalid to the extent that it requires visa or permanent residence
permit applicants – who are spouses of South Africans – to make their
applications outside of South Africa and wait for the outcome outside
the Republic.
They are also challenging a fee charged to spouses by VFS Global for
visa applications.
In his founding affidavit, Heath said the couple had visited the South
African Embassy in Harare before moving and followed the advice on
visa process that they had received there.
Lea entered the country on a 90-day visitor`s permit and returned to
Zimbabwe in August to obtain a police clearance certificate, which is
required for a spousal visa application in South Africa .On her return
she was issued with another 90-day visitor`s permit and started the
process of applying for a spousal visa immediately.
On November 27, the couple was informed that the application had been
rejected. A letter of appeal was then sent to the Home Affairs
director general, but the appeal was rejected.
Heath stated further that the sole reason for the rejection was that
Lea had not complied with Section 10 (6) of the Immigration Act, which
deals with whether one may or may not apply from within the country
for a change of status to a visa.
The couple, who are being represented by immigration attorney, Craig
Smith, said it would be devastating if she had to return.
"As matters stand my wife`s passport has within it a visa that has, on
the face of it, expired."
She is at risk of any immigration officer stopping her, inspecting her
passport, arresting and detaining her as he is technically an illegal
foreigner without any authorisation by the department to remain in
South Africa," Heath said in his affidavit.
The minister and the director general of Home Affairs have been given
until July 31 to file answering affidavits, and the matter is expected
to be heard soon afterwards.
Cape Argus