The state has been given 24 months to fix laws that require foreign spouses of locals to travel to their home countries to renew visas. The Cape Times reports in a majority judgment, the Constitutional Court ruled that the requirement by Home Affairs was constitutionally invalid.

The court ruled in favour of the application brought by James Tomlinson, a British citizen and permanent resident of SA, and his wife, a Ugandan citizen. SA citizen Christakis Ttofalli and his life partner, a Greek citizen, were the other applicants against Home Affairs.

The couples argued before the court that the requirement that foreign spouses travel back home for visa applications disrupted family life.

Opposing the applications, Home Affairs maintained that its requirements were designed to prevent people from fraudulently overstaying in SA, otherwise foreigners would be able to enter SA on a visitor’s visa and remain on a permanent basis, provided that they marry a citizen or permanent resident.

Justice Nonkosi Mhlantla ruled that the department did not make a sufficient case for how the requirement affecting even children of foreign spouses prevented fraudulent marriages.

She said the requirements forced families to live apart while waiting for a decision on the application for a change of visa status. This also violated children’s rights.

‘This limitation strikes at the core of marital rights and their reciprocal obligations. It interferes with the fulfilment of cohabitation, a central feature of marriage. That limitation extends to the right to dignity of the SA citizen or permanent resident who is forced to be separated from their spouse.’

Full Cape Times report (subscription needed)

Nandutu and Others v Minister of Home Affairs and Others