The Western Cape High Court has ruled that foreigners that are the parents and caregivers of South African children should be allowed to remain in South Africa even if their marriage or relationship with their South African partner comes to an end. 

In terms of the conditions applicable to Relatives Spouse Visas if a foreigner’s marriage or relationship with their South African partner or spouse comes to an end then their spousal visas automatically expire and their right to work in South Africa is terminated. In addition, they must leave South Africa forthwith.

Furthermore, should they wish to apply for another type of visa, such as a visitors visa or Relatives visa then they must do so from outside South Africa. Relatives visas also do not allow the holder of such visa to work in South Africa.

It was on this basis that a number of applicants took the Department of Home Affairs to Court as they contended that these sections of the Immigration Act provided an unjustifiable limitation of their constitutional rights and those of their children to dignity, equality and parental care. It also offended the “best interests of the child” principle. The applicants contended that whilst their spousal relationships may have come to an end, their parental relationships had not.

The presiding judge in the matter pointed out:

“In effect, the applicants have the Hobson’s Choice of either breaking the law by continuing to live and work in the country in order to maintain their parental responsibilities and relationships and contact with their children, or uphold the law by leaving the country, therefore breaching their parental duties and severing their contact and relationships with their children.

“I am of the view that the effect of the provisions in issue results in a violation of both their rights to dignity as well as those of their children, and the children’s constitutional and parental rights.

The Judge further contended that the Department of Home Affairs had not shown why it was necessary for foreign parents to leave the country and their children in order to regularise their status.

On the basis of the above the judgment declared as unconstitutional sections of the Act that: require a foreigner who holds a spousal visa, who has parental responsibility and rights, to leave South Africa on the termination of the relationship; require such a person to make an application for a change in status from outside South Africa; do not allow a foreigner who may be eligible for a visitors or relatives visa to work in South Africa in order to discharge their parental rights and responsibilities.

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