The validity of visas issued in terms of section 18 or in terms of section 11(6) of the Immigration Act on the basis of a spousal relationship (by marriage and/or life-partnership) with a South African citizen or permanent resident relies on the continued existence of the good faith spousal relationship.
As the primary condition of a spousal visa is “to reside with” the South African spouse, the breakdown and cessation of the relationship leaves the foreign spouse in a state of precariousness as the spousal visa becomes null in law. The end of the relationship implies a contravention of the visa’s primary condition. Established lives, family and work ties in South Africa suddenly jeopardized, leaving foreign spouses at a grave disadvantage, including those who are parents of South African children or permanent residents.
On 4 December 2023, following ongoing litigation in the Western Cape High Court initiated by Eisenberg & Associates in early 2020, the Constitutional Court handed down a landmark unanimous judgment providing for a relative visa with working rights for parents of South African citizen or permanent resident minor children and for the ability of parents of South African children or permanent residents to change status from within South Africa.
The Constitutional Court declared that sections 10(6), 11(6), and 18(2) of the Immigration Act and regulation 9(9)(a) of the Immigration Regulations inconsistent with the Constitution and invalid, to the extent that
- they required a foreigner who is the holder of a section 11(6) visa and (a) who is a parent of a child who is a citizen or permanent resident; and (b) is currently fulfilling his or her responsibilities to that child, or demonstrates an intention to do so, to cease working or leave the Republic because that foreigner’s good faith spousal relationship has ended and require a foreigner who is a parent of a child who is a citizen or permanent resident to leave the Republic in order to apply for a new visa; and
- do not allow a foreigner, who is otherwise eligible for a relative’s visa under section 18(1), to work in South Africa where that foreigner: (a) is the parent of a child who is a citizen or a permanent resident; and (b) is currently fulfilling his or her responsibilities to that child, or if he or she is not fulfilling his or her responsibilities to that child, at least demonstrates an intention to do so as soon as he or she is able to do so.
As in its preceding landmark judgment of 29 June 2019, the Constitutional Court in this Judgement ruled in favour of our clients and the order of constitutional invalidity was suspended for two years to enable Parliament to correct the constitutional defects relating to the Immigration Act identified in the judgment and to enable the Minister of Home Affairs to correct the constitutional defects in regulation 9(9)(a) of the Regulations.
As interim-relief a reading-in order was granted. The Court ordered that during the period of suspension:
- section 11(6)(a) shall be deemed to read as follows: ‘(a) such visa shall only be valid while the good faith spousal relationship exists, save that in the case of a foreigner whose good faith spousal relationship has terminated and who: (i) is a parent of a child who is a citizen or permanent resident; and (ii) is at the time fulfilling, or demonstrates an intention to fulfil, his or her parental responsibilities to that child, such visa shall be deemed to be valid, pending the outcome of an application by the foreigner for a new visa which must be made within three months of the end of the good faith spousal relationship. Provided further that, if such application is made after the expiry of three months, good cause is shown why it was made after that period.’
- Regulation 9(9)(a) is deemed to include a new sub- regulation 9(9)(a)(iv) that reads as follows: ‘(iv) is the parent of a child who is a citizen or permanent resident.’
The Minister of Home Affairs has now complied with the Order with the publication of 20 May 2024 of the Draft Second Amendment of the Immigration Regulations. This ‘Second Amendment’ replaces amendments published on 8 February 2024 (which were open for public comment until 29 March 2024) and those published on 28 March 2024 (withdrawn two weeks later).
This judgement and its widespread ramifications form part of Gary Eisenberg’s lasting and unparalleled legacy and contribution to the democratisation of South Africa’s immigration process.
Contact us today for more information on the parental visa.
by Claudia Pizzocri | CEO | Eisenberg & Associates