A South African citizen married to a foreigner asked what steps he should take to bring his foreign spouse to South Africa.

Introduction to South African Immigration Law

South African immigration law, as outlined in the Immigration Act of 2002, provides a framework for the entry and residence of foreign nationals, including spouses of South African citizens or permanent residents. The Act aims to balance economic growth, security, and human rights considerations (Section 2 of the Immigration Act).

Types of Foreign Spouses

1. Spouse of a South African Citizen or Permanent Resident:
   • This category includes foreign nationals married to or in a permanent relationship with a South African citizen or permanent resident.
   • The Immigration Act does not differentiate between married and unmarried couples, nor does it make distinctions based on sexual orientation, provided the relationship is monogamous, in good faith, and intended to be permanent (Section 1 of the Immigration Act).
2. Spouse of Another Foreign National:
   • If a foreign national is in South Africa for work, their spouse and dependents can accompany them, subject to obtaining the necessary permits.
   • If the spouse wishes to work, they must meet the same requirements as any other foreign national seeking employment.

Requirements for Foreign Spouses

• Proof of Relationship:
  • For unmarried couples, proof of cohabitation is required. This can include utility bills or a notarial deed of cohabitation, especially if one partner is a South African citizen or permanent resident.
  • If the relationship was registered in another country, documentation from that country may be needed. However, if such registration is not possible, a waiver can be applied for (Section 1 of the Immigration Act).
• Employment for Foreign Spouses:
  • If a foreign spouse of a South African citizen or permanent resident wishes to work, they only need a job offer. This can be in any field.
  • For spouses of other foreign nationals, the same requirements apply as for any foreign national seeking employment in South Africa.
• Divorce and Child Custody:
  • If either party was previously divorced, a certified copy of the divorce order is required.
  • If children are involved, proof of permission to bring them to South Africa must be provided.

Recent Updates in Immigration Law

• Remote Work Visas:
  • South Africa has introduced a new sub-category of Visitor’s Visa allowing foreign nationals to work remotely for foreign employers while residing in South Africa, provided they earn at least R1,000,000 per annum.
• Points-Based System for Work Visas:
  • A points-based system has been introduced for work visa applications, considering factors like age, qualifications, language skills, and job offers.
• Constitutional Court Rulings:
  • Recent judgments have impacted foreign spouses’ rights, particularly in cases where relationships end. Foreign parents can now apply for a new visa category to remain in South Africa to care for their children.

Conclusion

South African immigration law continues to evolve, with recent amendments and court rulings affecting foreign spouses and parents. Understanding these changes is crucial for navigating the complex process of obtaining residence permits and work visas in South Africa.