In a recent Constitutional Court judgement, Chief Justice Zondo and eight other Constitutional Justices were presiding over two consolidated matters seeking confirmation of an order of constitutional invalidity in respect of certain provisions of the Immigration Act1 and some of the Immigration Regulations,2 promulgated under the Act. They were deciding on an order initially made by the Western Cape Division of the High Court ("the High Court").
The first application ("Rayment application/ matter") was brought by Tereza Rayment and five others. The "five others" were the minor children of Ms Rayment (Thierry Antoine Gomdran, Tapiwa Tembo, TR and JR)
The first respondent is the Minister of Home Affairs (Minister), the second respondent is the Director-General, Department of Home Affairs (Director- General), the third respondent is the Deputy Director-General of the Department of Home Affairs, and the fourth respondent is the Department of Home Affairs (Department).
The second application ("Anderson application/ matter") was brought by Richard William Anderson and three others (CJA, Anderson's son, Joshua Okoth Ogada, and MWO, Joshua Okoth Ogada and Tanja Estella Bosch's minor child). The second application's Respondents are the same as in the Rayment matter.
The applicants are foreign nationals who married or got involved in a good faith spousal relationship with South African citizens. From these marriages and relationships, children were born in South Africa or acquired South African citizenship through their parent's citizenship. The applicants had been residing and working in South Africa on a "spousal" visa, which became invalid upon termination of the relationships and/ or divorce.
The applicants approached the High Court and challenged the constitutional validity of various provisions of the Immigration Act and some of its Regulations.
The provisions of the Immigration Act which were under scrutiny are:
Section 10(6) and (b):
"(a) Subject to this Act, a foreigner, other than the holder of a visitor's or medical treatment visa, may apply to the Director-General in the prescribed manner to change his or her status or terms and conditions attached to his or her visa, or both such status and terms and conditions, as the case may be, while in the Republic.
(b) An application for a change of status attached to a visitor's or medical treatment visa shall not be made by the visa holder while in the Republic, except in exceptional circumstances as prescribed.
Section 11(2):
"(2) The holder of a visitor's visa may not conduct work: Provided that the holder of a visitor's visa issued in terms of subsection (1)(a) or (b)(iv) may be authorised by the Director-General in the prescribed manner and subject to the prescribed requirements and conditions to conduct work."
Section 18(2):
"(2) The holder of a relative's visa may not conduct work."
Regulation 9(9) states:
"The exceptional circumstances contemplated in section 10(6)(b) of Immigration Act shall—
a)in respect of a holder of a visitor's visa, be that the applicant— (i) is in need of emergency lifesaving medical treatment for longer than three months;
The High Court made a ruling and declared that the Immigration Act, alternatively sections 10(6), 11(1)(b) and 18(2) thereof, as read together with regulations 9(5) and 9(9) of the Regulations are inconsistent with the Constitution3, and are invalid.
The application was brought to the Constitutional Court to confirm some of the orders made by the High Court. , The Constitutional Court stated that a court cannot declare one thing or another invalid. However, the Constitutional Court may make an appropriate order if it believes that a declaration of invalidity and other orders should be made.
The common issue in both applications is that the spousal visa expires when the marriage or good faith relationship ends. When the foreign spousal visa expires, the foreign national is required to stop working and to leave South Africa immediately, otherwise his/ her continued stay in South Africa becomes illegal. If the foreign national wants to stay in South Africa, they must apply for a new visa or permit from outside the country. They cannot return until the new visa or permit is granted.
The High Court and the Constitutional Court found that the provisions preventing foreign national from working, especially those with children who depend on them limit the child's and parent's right to human dignity. It also infringes on section 28(2) of the Constitution which deals with best interest of a child. The parties argued in their submissions to the court: "Parents – whether South African or foreign – should not be compelled to choose between supporting their children or complying with the law".
The Constitutional Court found it irrational that a foreign parent of a South African child must stop working when their marriage or relationship with a South African citizen comes to an end. It questioned - "How can one law require parents to support and maintain their child while another law forces the same parent to stop working just because the spousal relationship has ended even though such parent's legal obligation to support and maintain that child has not ended".
Another provision of the Act limits a foreign national's right to dignity and the right to freedom of movement by forcing a foreign national to leave South Africa if they want to apply for a different visa or permit.
The Constitutional Court found that it also limits:
- the right to human dignity of the spouse or partner who is a South African citizen or a permanent resident;
- the child's right to human dignity if the couple have a child;
- the child's section 21(3) right as a citizen; and
- the child's right under section 28(2) of the Constitution.
The statutory requirement that a foreign national must leave South Africa to apply for a new visa makes it harder for spouses to honour their marital obligations, like living together. This infringement is significant, especially when it leads to family separation.
It held that the Immigration Act limits several important rights, including the right to human dignity, which entails family life, the right against unfair discrimination, and the right of a child to have their best interests considered in every matter affecting them.
The Constitutional Court considered the purpose of the limitation and found that the Respondents did not give a valid reason the Immigration Act requirements that require a foreign parent must leave South Africa to apply for a change of status or to stop working when a spousal relationship ends.
The Constitutional confirmed that sections 10(6), 11(6), and 18(2) of the Immigration, and regulation 9(9)(a) of the Regulations, are inconsistent with the Constitution.
The declarations of invalidity were suspended for 24 months from the date of the order to enable Parliament to correct the constitutional defects in the Immigration Act identified in the judgement and for the first respondent to fix the issues in regulation 9(9)(a) of the Regulations.
During the period of suspension, these measures were put in place:
- Section 11(6)(a) is deemed to read as specified, allowing certain foreigners who are parents to a citizen or permanent resident child to maintain visa validity pending new applications, despite the termination of a marriage or relationship with a South African Citizen;
- Section 18(2) is deemed to allow certain foreigners to work in the Republic for the full duration of the relative's visa; and
- Regulation 9(9)(a) is deemed to include a new sub-regulation for parents of South African children.
If the constitutional defects are not corrected within 24 months, the reading-in becomes final.
This matter is a big victory not only to foreigners who were previously married to or had good faith spousal relationship with South Africans, but it is also a great victory for children born out of those marriages or relationships. This judgement speaks directly to the paramount importance of the best interest of a child and the principal of family unification. It further helps with restoring the human dignity of a foreign parent to work and provide for themselves and to fulfil their parental rights and responsibility as entrenched in the Children's Act and section 28 of the Constitution.
Footnotes
1. Immigration Act 13 of 2002
2. Immigration Regulation, 2014
3. Constitution of the Republic of South Africa, 1996
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