In a landmark decision, the Constitutional Court of South Africa (“Court”) has ruled that certain sections of the Immigration Act, 2002 (Act No. 13 of 2002) (“Act”), and regulations of the related Immigration Regulations (“Regulations”), pertaining to spouses of South African citizens or permanent residents whose spousal relationships have terminated, are unconstitutional. The Court's decision addresses the rights of foreign nationals who, despite the end of their spousal relationships, have children who are South African citizens.

The applicants in this case had been residing and working in South Africa under spousal visas granted in terms of section 11(6) of the Act. These visas were extended over time, but became invalid upon the termination of the spousal relationships with South African citizens. Notably, children were born from these relationships, and the applicants had played active roles as parents, even after the relationships had ended.

The Court engaged with various constitutional provisions, including sections 1, 2, 3, 9, 10, 28, 29 and 39 of the Constitution of the Republic of South Africa, 1996 (“Constitution”), and found that the current provisions of the Act and Regulations unreasonably limited the rights of foreign national parents and their South African citizen children.

One key finding of the Court was that section 11(6) of the Act, pertaining to spousal visitor's visas, is only available to foreigners if they don't qualify for other visas, and only valid during the existence of a good faith spousal relationship. The Court noted that if such a relationship ends, the foreigner is not allowed to continue working in South Africa, leading to potential criminal charges if he or she remains. This, the Court held, adversely affects the livelihoods of both the foreign national and his or her South African citizen child.

The Court also addressed the situation where a foreign parent, after the termination of a spousal relationship, is required to leave South Africa and apply for another visa from outside the country. This separation from the child was deemed unconstitutional, limiting the right of the child and the foreign parent to human dignity and the right to family life in an unjustifiable manner.

In response to these findings, the Court declared sections 10(6), 11(6), and 18(2) of the Act, as well as regulation 9(9)(a) of the Regulations, inconsistent with the Constitution and invalid. The Court suspended the invalidity for 24 months, providing Parliament and the Minister of Home Affairs an opportunity to correct the constitutional defects. The Court has ordered that specific provisions be read into the Act and the Regulations during the period of suspension to protect the rights of foreign national parents and their South African citizen children.

This judgment is a significant victory for foreign national parents and their South Africa citizen children, offering relief to those facing the complexities of spousal relationship terminations and the impact thereof on their ability to live and work in South Africa. The Court's decision underscores the importance of aligning immigration laws with constitutional rights, particularly in situations involving children's rights and family life.

Written by Jaco Brits, Senior Expatriate Solution Specialist at Xpatweb