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

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.

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