Concourt judgment will help keep families together

The Constitutional Court handed down a judgment at the end of June that has important consequences for immigrants. A majority of the judges ruled that foreign spouses of South African citizens and permanent residents may apply for a spousal visa within South Africa and do not have to apply for such a visa overseas.

The judgment is a significant victory for families that faced potential separation. It may not seem like a big deal to have to leave the country to apply for a visa, but, besides being a financial burden for families, the process can take a long time, leaving spouses apart for months.

Background

The applicants in the case were two families that had been affected by the Immigration Act and its Regulations. These laws require a foreign national whose visa status is being changed to apply for a new visa from outside South Africa.

Robinah Nandutu is a Ugandan citizen who entered South Africa on a visitor’s visa. When she arrived in South Africa, she was pregnant and gave birth shortly after. She travelled to South Africa to join her partner, James Tomlinson, a British citizen, who has permanent residence in South Africa. He is the father of their child. Nandutu married Tomlinson soon after she arrived in South Africa.

After they she got married, Nandutu sought to change her visa status from a visitor’s visa to a spousal visa. However, her application for a spousal visa was rejected. The reason for the rejection was because the Immigration Act prevents a person from changing their visa status while in South Africa unless there are exceptional circumstances.

The Immigration Regulations refer to two categories of “exceptional circumstances”. The first is if a person needs to access emergency medical treatment. The second is if a person is the child or spouse of someone who holds a work or study visa and wants to accompany them in South Africa.

Nandutu appealed the rejection of her application to the Director-General and the Minister. Both of these appeals were rejected.

The other applicants were Ilias Demerlis and Christakis Ttoffali who are in a permanent life partnership. Demerlis is a Greek national who arrived in South Africa on a visitor’s visa to join his partner Ttofalli. He later applied for a spousal visa, but this was rejected for the same reasons that Nandutu’s application was.

The High Court Judgment

The applicants launched an application in the Western Cape High Court to challenge the regulations. They argued they were invalid because the exceptional circumstances it lists do not include being a foreign spouse or child of a South African citizen or permanent resident.

Also, they argued that making an application from outside South Africa infringed their right to dignity. This is because it leads to a separation of families.

The High Court dismissed the application because in its view, the regulations serve legitimate purposes: deterring fraud and preventing criminals from taking advantage of the immigration system. Also, the Immigration Act provided a remedy for the applicants in this case: they could apply to the Minister to waive the requirement of having to apply from their country of origin.

Why the Constitutional Court reversed the High Court decision

The applicants appealed to the Constitutional Court. Here, they argued that the regulations infringed their right to dignity. They argued that separating their family infringes the rights of children especially the principle of the best interests of the child.

The applicants relied on a previous Constitutional Court judgment called Dawood v Minister of Home Affairs, where the court found that provisions which require a foreign spouse to leave the country to apply for an immigration permit infringe the right to dignity and family life.

The Department of Home Affairs and the visa processing company VFS were the respondents. They argued that there were important national security reasons for the prohibition on changing one’s visa from within South Africa.

In any case, they argued, the Minister of Home Affairs may waive the requirement of applying from outside South Africa. These waivers are considered on a case-by-case basis.

There were four main issues which the court had to determine.

First, whether the court’s finding in the Dawood judgment was applicable to this case.

Second, whether a change from a visitor’s visa to a spousal visa amounted to a change of visa status.

Third, whether the regulations infringed the right to dignity and whether this infringement was justifiable.

Fourth, whether the Minister was empowered to waive the requirement of applying from outside South Africa.

The applicability of Dawood

In the Dawood case, the Constitutional Court had to decide the constitutionality of the Aliens Control Act (now repealed) which required applicants for immigration permits to be outside South Africa when making their applications. The applicants in that case were foreign nationals who were married to South African citizens who would have to leave the country to apply for an immigration permit.

The court found that because many spouses were too poor to accompany their spouse overseas, the Act resulted in many families being separated. Separating families infringes the right to dignity because the right to dignity includes the right to sustain and maintain marriage relationships, the court said.

The court found that the same reasoning that applied to Dawood applied to this case. It also found that it was clear that the exceptional circumstances listed in the regulations did not include the circumstances that the applicants were in.

Change of Status

A visitor’s visa is different from a spousal visa because the rights, conditions and obligations which attach to each category of visa are different, the court said. Changing from one category of visa to another amounted to a change of status which forces the person to apply for the new visa from outside South Africa.

Right to dignity

The court ruled that the regulations infringed the applicants’ right to dignity for the same reasons outlined in Dawood. Also, the court pointed out that the regulations violated the best interests of the child principle because a child would be separated from one of their parents (the foreign spouse) who would have to leave the country.

Minister’s powers

The court found that the minister was not empowered to waive the requirement of applying from outside South Africa because it was a legislative requirement and not a regulatory one. This means the minister may only waive a requirement which is provided by the regulations and not a requirement in the Immigration Act.

Is the limitation justified?

Home Affairs submitted two main reasons for the exclusion of foreign spouses from the exceptional circumstances provided for by the Regulations.

First, South Africa is a sovereign state that may decide who enters the country and what the requirements are to remain in its borders.

Second, the exclusion deters people from fraudulently overstaying in South Africa by entering the country on a visitor’s visa and subsequently marrying a citizen or permanent resident.

But the court pointed out that Home Affairs failed to establish a link between the purpose of the exclusion and the means adopted to achieve it. Also, Home Affairs failed to show that this approach was proportionate to the impact on the applicants’ rights.

In any event, those who apply for a spousal visa are already required to comply with certain security checks and enquiries, the court said. Home Affairs had not established why these measures were insufficient.

As far as fraudulent marriages are concerned, Home Affairs was capable of conducting investigations to detect these, the court said.

Minority dissent

A minority of the Constitutional Court judges would have rejected the application. These judges argue that the right to remain, reside and enter the country is a right that only citizens have. Although the law provides accommodation for refugees and asylum seekers the general rule remains the same.

The minority was sceptical that the requirement to apply for a new visa from outside South Africa would prejudice or endanger the applicants in any way. Instead, they contended that the right of non-citizens to enter and remain in the country is best decided by the executive as long as it uses this discretion in a fair and reasonable manner.

Remedy

The court declared the Immigration Regulations unconstitutional. But it suspended this order and gave Parliament two years to correct this defect. In the interim, the court ruled that the regulations should be read to include the fact that a person is the spouse or child of a South African citizen or permanent resident as an exceptional circumstance. If Parliament fails to amend the legislation in time, the court’s variation of the legislation will become final.

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