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Foreign parents: Constitutional Court declares parts of Immigration Act unconstitutional

Source: News24, 05/12/2023

The Constitutional Court has ruled that parts of the Immigration Act are unconstitutional.

• The Constitutional Court has declared sections of the Immigration Act invalid and unconstitutional as they discriminate against foreign divorced and separated parents.
• According to the act, a foreigner on a spousal visa must leave the country when their relationship with a South African ends, even if they have children together.
• The court gave Parliament 24 months to make the necessary amendments to the act, so it is consistent with the Constitution.
The Constitutional Court has declared sections of the Immigration Act to be inconsistent with the Constitution and invalid because they violate the right to human dignity and family life.
The Immigration Act requires foreign parents on a spousal visa to quit their jobs and leave the country if they divorce or are separated from their South African partners and can only apply for a new visa while they are outside the country.
The matter was taken to the Constitutional Court by a group of foreign parents who had either divorced or separated from their South African partners and stood to lose their visas.
The group was made up of parents of different nationalities who have children in the country.
The parents had entered South Africa on spousal visas. They were either separated or divorced from their South African spouses and partners they were with when they received the visas.
The group approached the apex court for a confirmatory order from the Western Cape High Court, which found that the act discriminates against divorced and separated parents.
The court declared sections 10 (6), 11 (6), and 18 (2) of the Immigration Act 13 of 2002 and regulation 9 (9) (a) of the Immigration Regulations, 2014 published under GN R413 in the Government Gazette inconsistent with the Constitution and are therefore invalid.
It says a foreigner who holds a spousal visa and is the parent of a child who is a citizen or permanent resident, and who is currently fulfilling their responsibilities to that child, must cease working or leave the country because that foreigner`s good faith spousal relationship has ended.
In its judgment, the Constitutional Court gave Parliament two years to make necessary amendments to the act to ensure that it was consistent with the Constitution.
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`In terms of the Immigration Act, a condition of the grant of a spousal visa is that the person to whom it is granted must live together with the other person in a good-faith spousal relationship or marriage.
The judgment reads:
If they do not live with such a person, they are in breach of the conditions of the spousal visa. If they have a job in South Africa at the time of the termination of the marriage or the good faith spousal relationship, they are not allowed to continue working in South Africa. They are required to leave South Africa and commit a criminal offence each day they remain in South Africa.
The judgment noted that if the foreign national needs to work in South Africa to survive, they suddenly will have no means of earning their livelihood once they are not allowed to work.
The court also said if there is a child born out of the marriage or the good faith spousal relationship between the foreign national and the South African citizen or permanent resident, that child will be adversely affected by the fact that the foreign national �` who may be his or her father or mother �` is not allowed to work once the spousal visa has expired.
The court, however, dismissed an appeal of a Zimbabwean father, who had entered the country illegally.
According to court documents, the Department of Home Affairs declared the man undesirable after it had found that he had been entering and leaving the country without proper documentation. The court said the man had approached it `with dirty hands` and dismissed his application.

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