Concourt recognises visa rights of foreign spouses and children in SA

2019-07-03 16:01
High Court. (Duncan Alfreds, News24)

High Court. (Duncan Alfreds, News24)

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The Constitutional Court has given the state 24 months to remedy immigration regulations that require foreign spouses or children of South African citizens to leave the country to renew their visas.

In a majority judgment, the court found that the requirements were constitutionally invalid because it unjustifiably limited the rights of children and the right to dignity.

Two family units involving foreign spouses had applied for leave to appeal the Western Cape High Court's decision in favour of the Department of Home Affairs.

The High Court had been of the opinion that the regulations did not infringe on constitutional rights.

It believed the legislative framework was aimed at, among others, minimising administrative inconvenience and preventing certain marriages from becoming a loophole to circumvent immigration restrictions.

But the Constitutional Court ruled in favour of Robinah Sarah Nandutu, a Ugandan citizen, and her husband James Ferrior Tomlinson, a British citizen and permanent resident of South Africa.

Also benefiting from the ruling were Greek citizen Ilias Demerlis and his South African partner, Christakis Fokas Ttofalli.

They argued that the specific regulation affecting them prevented a couple from enjoying the ordinary incidents of marriage and partnership, including the rights and obligations of cohabitation.

The Department of Home Affairs submitted that there was a reasonable and rational government purpose for the implementation and maintenance of these rules.

The apex court suspended the order of constitutional invalidity and granted an interim reading-in of the regulations to provide immediate relief to the applicants and those in similar positions.

Should the state fail to enact the appropriate legislation within two years, the interim reading-in would become final.

*This article has been updated to remove reference to VFS Visa Processing. 

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