Judgment opens wider visa vistas

Source: Weekend Argus, 31/01/2016

Cape Town - A precedent-setting judgment focusing on South Africa`s
new immigration regulations could see foreigners with tourist visas
who are living here with South African partners being given spousal
visas without having to return to their home countries to apply for
the documents.


On Friday, a judgment handed down in the Western Cape High Court found
that Zimbabwean Lea Stewart, 40, whose husband and four sons live in
Cape Town, did not have to return to Zimbabwe to apply and wait for a
spousal visa from SA. Instead it was ordered that she be granted one
in South Africa.


Immigration lawyer Craig Smith said it effectively meant foreigners
married to or in a permanent relationship with a South African citizen
or permanent resident holder, could apply to change the conditions of
their visa to a spousal one without having to return to their home
country. They also do not have to wait in their home country for the
outcome of their applications.


The judgment said the Stewart family arrived from Zimbabwe on May 14,
2014 and set up home in Cape Town.


Stewart entered the country on a 90-day visitor`s visa. The new
immigration regulations came into effect about two weeks after they
arrived and they had not had any forewarning the laws would
change.


Before their arrival they had enquired in Harare about how to obtain
permanent residency for Stewart. "They were advised that she would
first require a `spousal visa` before she could apply for permanent
residency, and that both visas could be applied for once she was in
the Republic," the judgment said. "Should this advice have proved to
be correct, the present application would be unnecessary."


Stewart and her husband believed she needed a certificate from police
to apply for temporary residency, so she returned to Zimbabwe in
August 2014 to get this document. When she returned to South Africa
she was given another 90-day visitor`s visa.


Stewart began applying for a spousal visa on her return, but her
application was denied and she applied to have this reviewed. This was
also denied.


"This decision was based on the fact that she did not qualify for a
temporary residence permit… because she was not permitted to change
the conditions of her current visitor`s visa in terms of (a section in
terms of an) Immigration Regulation," the judgment said.


Stewart tried to appeal this too. The judgment said the Immigration
Act made provision for a foreigner to apply to change the status of
their visa, but not the conditions of their visa. Stewart and her
family claimed that a section of the Immigration Act was inconsistent
with the constitution.


The judgment found that Stewart was entitled to be granted a spousal
visa.


The director-general of Home Affairs was also directed to issue
Stewart a visitor`s visa and allow her to apply for permanent
residence within three months. Home Affairs was ordered to pay the
family`s costs.
Weekend Argus