ConCourt ruling on foreign spousal and chilren visa laws major impact â€` apply from a tourist within South Africa

Source: Constitutional Court, 14/07/2019

The court declared the rules constitutionally invalid because in effect, they separate families.
Constitutional Court gives state two years to amend foreign spousal visa laws
Immigration attorney acted for the applicants in their appeal to the highest court in the land.
He explains that while the minister now has two years to change the regulations, in the meanwhile, the missing exceptional circumstances for foreign spouses and children of South Africans must be ``read` into the appropriate regulation.
Any foreign spouse or minor child of a South African person is affected - whoever comes into South Africa on a visitor visa may now change status within the country instead of having to laboriously and at great expense return to their countries of origin to do so.
From the moment that Constitutional Court order was handed down - a week ago, last Friday - we give the minister 24 months to actually write that language in and to make a set of constitutionally compliant regulations..

On 28 June 2019 at 10h00, the Constitutional Court handed down judgment in an application for direct leave to appeal against a decision of the High Court, Western Cape Division, Cape Town (High Court). The applicants sought to have regulation 9(9)(a) of the Immigration Regulations declared unconstitutional on the basis that it limits the constitutional right to dignity by limiting the rights of persons to marry and cohabit, and the best interests of children by limiting their rights to family care.

This matter involved two different family units, each of which comprises a foreign spouse who is married to or is in a life partnership with a South African citizen or permanent resident. The first applicant, Ms Nandutu, is a Ugandan citizen who resides with and is married to the second applicant, Mr Tomlinson, a South African permanent resident. The third applicant, Mr Demerlis, is a Greek citizen, who resides with and is in a life partnership with the fourth applicant, Mr Ttofalli, a South African citizen.

Ms Nandutu entered South Africa on a temporary visitor’s visa that was issued under section 11(1) of the Immigration Act (Act). At the time of entering South Africa, she was pregnant with Mr Tomlinson’s child. Several months later, Ms Nandutu married Mr Tomlinson and gave birth to their son. In order to be able to remain in South Africa with her husband and son, Ms Nandutu applied for a “spousal visa” under section 11(6) of the Act. Her application was rejected on the basis that in terms of section 10(6) of the Act, temporary visa holders are not able to apply for a change in visa status from within South Africa, and must make those applications from outside South Africa.

The majority judgment, penned by Mhlantla J and concurred in by Cameron J, Jafta J, Khampepe J, Madlanga J, Nicholls AJ and Theron J, allowed the applicants to appeal directly to the Constitutional Court. The majority declared regulation 9(9)(a) invalid and inconsistent with the Constitution, in that it unjustifiably limits the constitutional right to dignity and the right that a child’s best interests are paramount in every matter concerning the child. The majority relied on the Constitutional Court’s previous judgment in Dawood. In that case, the Court dealt with a legislative regime that required foreign spouses to have valid temporary residence permits in order to apply for immigration permits that would allow them to reside permanently in South Africa. The legislation required that an applicant be outside the country at the time of the grant of an immigration permit. The legislation also created an exception to this in relation to, amongst others, spouses and dependent children. An applicant also had to be the holder of a valid temporary residence permit right up to the time of the grant of the immigration permit. A difficulty arose from the fact that the issuing of this temporary residence permit was subject to the exercise of a discretion by immigration officials. And this the Court held to be unconstitutional as there was no legislative guidance on how the discretion was to be exercised. Also, the Court held the entire regime to be constitutionally invalid, as it unjustifiably limited the right to dignity by creating an onerous burden on families who would have to separate as a result. This, the Court found, created practical and physical barriers to the enjoyment of one’s familial rights (and, by extension, one’s human dignity), and also obstructed a spouse’s ability to carry out fundamental aspects of their spousal obligations and the ability to live together. Relying on this Dawood holding, the majority in this matter concluded that regulation 9(9)(a) limited the right to dignity and right that a child’s best interests are paramount in every matter concerning the child.

Accordingly, the majority declared regulation 9(9)(a) constitutionally invalid, suspended the declaration of invalidity for 24 months and ordered a reading-in on an interim basis of words that have the effect of adding to the exceptions under the regulation spouses or children of South African citizens or permanent residents. The effect of this reading-in was that, during the period of suspension, spouses or children of South African citizens or permanent residents would not have to depart from South Africa when applying for a change in visa status.