SA Migration International

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28-05-2024 SA MIGRATION ,NANDUTU AND OTHERS V MINISTER OF HOME AFFAIRS

Change of status from Visitor’s Visa now allowed for spouses and children of South African citizens and permanent residents meaning you can from a tourist visa to spouse or relatives visa

Spouses and children of South African (SA) citizens and permanent residents were prohibited from changing their Visitor’s Visas, used to enter South Africa, to other types of longer term visas, for example relative’s visas, study visas and work visas. These applicants had to travel abroad (to their home countries, although they perceived SA as their home country) file the required longer term visa application at the South African Mission, obtain the visa and then return to South Africa. This meant in practice that families were torn apart, the spouses’ right to cohabitation and children’s rights to dignity were infringed whilst the visa formalities had to be met.
Regulation 9(9)(a) of the Immigration Act, that imposed the restriction of change of status from a Visitor’s Visa to a longer term visa on spouses and children of SA citizens and permanent residents was however not applicable to the spouses and children when the applicant was an accompanying spouse or child of a holder of a business or work visa, who wishes to apply for a study or work visa. This meant that spouses and children of foreign nationals holding a business or work visa had more rights, in terms of the Immigration Act and Regulations, than the spouses and children of SA citizens and permanent residents.
This restriction imposed by Regulation 9(9)(a) on spouses and children of SA citizens and permanent residents was surely not what the legislature had in mind when the Immigration Regulations were drafted, but same was still imposed and this lead to much heartache and wasted expenditure where spouses and children had to travel abroad to submit their visa applications.
On 28 June 2019, the Constitutional Court handed down judgment in a case where applicants sought to have Regulation 9(9)(a) of the Immigration Regulations declared unconstitutional on the basis that it limits the constitutional right to dignity by limiting the rights of persons to marry and cohabit, and the best interests of children by limiting their rights to family care.
The applicants argued that the lack of an exception that catered for holders of visitors’ visas who are spouses or children of South African citizens or permanent residents limited their constitutional right to dignity.
BACKGROUND FACTS TO THIS COURT CHALLENGE: NANDUTU AND OTHERS V MINISTER OF HOME AFFAIRS AND OTHERS [2019] ZACC 24
This matter involved two different family units, each of which comprises a foreign spouse who is married or life partner of a South African citizen or permanent resident.
In each of these family units the spouse of the SA citizen or permanent resident was in possession of a Visitor’s Visa and wanted to apply for a longer term visa whilst in South Africa, there applications for longer term visas could not even be accommodated under exceptions that make it possible for certain Visitor’s visa holders to apply for a change in visa status from within South Africa.
That was because the exceptions did not cover their situation. The exceptions which allows for exceptional circumstances to change a Visitor’s visa to another type of visa are contained in Regulation 9(9)(a) of the Immigration Regulations.
The main issue before the Constitutional Court was whether Regulation 9(9)(a) is constitutionally invalid to the extent that it does not extend “exceptional circumstances” to include “where the applicant is a foreign spouse or child of a South African citizen or permanent resident”.
THE CONSTITUTIONAL COURT RULING AND THE IMPACT OF THE RULING:
The majority judgment declared Regulation 9(9)(a) invalid and inconsistent with the Constitution, in that it unjustifiably limits the constitutional right to dignity and the right that a child’s best interests are paramount in every matter concerning the child.
Relying on the Dawood case (Dawood v Minister of Home Affairs), the majority jsutices in this matter concluded that Regulation 9(9)(a) limited the right to dignity and right that a child’s best interests are paramount in every matter concerning the child.
Accordingly, the majority justices declared Regulation 9(9)(a) constitutionally invalid, suspended the declaration of invalidity for 24 months and ordered a reading-in on an interim basis of words that have the effect of adding to the exceptions under the regulation spouses or children of South African citizens or permanent residents, the following sub-section was therefore added to Regulation 9(9)(a):
‘(iii) is the spouse or child of a South African citizen or permanent resident.’
WAY FORWARD FOR SPOUSES AND CHILDREN OF SA CITIZENS AND PERMANENT RESIDENTS:
The effect of this ruling and the addition of a reading-in to Regulation 9(9)(a) is that spouses and children of South African citizens or permanent residents would not have to depart from South Africa in future when applying for a change in Visitor’s visa status. The change of status applications can therefore be submitted at VFS offices located in South Africa.
Spouses (including qualifying life partners) and children of SA citizens and permanent residents may now opt to travel to South Africa with their visa exemptions that may be valid for up to 90 days (where applicable) and apply in South Africa for a longer term work or study visa.
Regulation 9(9)(a) does not stipulate an exception for change of condition applications from Visitor’s visa to Relative visa, it will therefore be interesting to see whether the Department of Home Affairs will interpret the Constitutional Court ruling correctly or if it will take another court challenge to convince the Department. The constitutional right to dignity and rights of persons to marry and cohabit, and the best interests of children are paramount and should be protected at all times

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