Spousal visas wrangle heads to the Constitutional Court

Source: IOL, 22/10/2018

Spousal visa challenge to head to the Constitutional Court.
Should foreigners who marry in South Africa before the expiry of their
three-month visitor visas be allowed to regularise their stay?
In papers filed at the Constitutional Court, Home Affairs bluntly says
“no” and maintains that allowing this would be an abuse of immigration
laws on a “drastic scale”.
“Individuals will be able to travel to South Africa on a visitor’s
visa and be immediately entitled to stay permanently at the expiry of
the three months on the basis of an alleged spousal relationship,” the
department’s acting chief director for permits, Rodney Marhule, said
in the papers.
Marhule’s affidavit was filed as a response to an application by two
Cape Town couples who are up in arms over regulations that rule out
their chances to acquire spousal visas.
Home Affairs required the partners to travel back to their countries
and obtain new visas there, something which the applicants maintained
separated their families.
James Tomlinson, a British citizen and permanent resident of South
Africa, and his wife Sarah Nandutu, a Ugandan citizen, make up the
first set of applicants in the matter.
South African citizen Christakis Ttofalli and his life partner Illias
Demerlis, a Greek citizen, were the other applicants.
Tomlinson married Nandutu two months after she entered the country in
2015 on a visitor’s visa.
Rejection of Nandutu’s spousal visa application also meant their son’s
birth could not be registered. He cannot apply for a passport or an
identity number.
The child joins thousands born in the country but rendered stateless.
Ttofalli got into a “life partnership” and started cohabiting with
Demerlis within three months of her arrival from Greece.
Gary Simon Eisenberg, the attorney for all four applicants, said in
the papers his clients sought to be allowed to obtain spousal visas
without travelling back to their countries.
“The application aims to ensure that the applicants’ right to enter
and maintain familial relations is not violated by requiring spouses
to leave their families and apply for spousal visas from abroad.
“The applicants submit that the regulation constitutes an
unjustifiable limitation to their right to dignity,” Eisenberg said.
“It requires a spouse to leave the Republic and their family for an
unspecified amount of time.”
He said it was also unclear how accepting these applications from
within South Africa was more inconvenient than processing them via
foreign embassies.
“The applicants’ familial relations should not be at risk just to make
bureaucracy run smoothly,” said Eisenberg.
But Marhule said Home Affairs` regulations were justified and were
meant to prevent the defrauding of immigration processes.
“The department has previously allowed individuals on visitor visas to
change (to spousal visas) inside the Republic, and that this led to
widespread fraud and abuse of the system.
“The department has tried less restrictive means, and they had the
effect of threatening the security of the Republic’s borders,” Marhule
said.
Makgakga Kgwadi, the Constitutional Court’s registrar, has informed
the parties that the matter will be heard in due time