When is it unconstitutional that a spousal visa becomes invalid if the relationship ends?

EDITOR’S NOTE: the constitutional court made a similar finding in the case of Rayment v Minister of Home Affairs.

A spousal visa allows a foreigner to live with a South African Citizen or permanent residence holder in South Africa on a temporary visa.

s 11(6)(a) of the Immigration Act provides that a spousal visa shall only be valid while the good faith spousal relationship between the parties ‘exists’, and s 43(b) of the Act provides that upon the expiry of their status foreigners are to (‘shall’) depart SA. If they do not, they are considered to be illegal foreigners and unless authorized by the Director-General to remain pending an application for status become liable to be deported.

In a case heard in the Western Cape in June 2022, certain persons affected by these sections asked the court to declare that foreign parents of South African children should be allowed to remain in the country even if their relationship with their spouse ends.

The applicants had children (with their SA spouses) who were SA citizens, born in SA or had acquired SA citizenship on the strength of their SA parent’s citizenship. All the applicants had been living and working in SA for many years. All of them had been dutiful and supportive parents and caregivers to their children, sharing parental responsibilities with their partners both during and after the termination of their spousal relationships.

The judge found certain sections of the Act to be inconsistent with the Constitution and therefore unconstitutional, to the extent that they require foreigners who are parents and caregivers of SA children to cease working and to leave SA when their spousal relationships with their SA spouses come to an end, or they no longer cohabit together.

The judge suspended the declaration of invalidity for 24 months to enable Parliament to remedy the inconsistencies but ordered a “reading in” of the provisions in the interim.

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