A judgment by Western Cape High Court Judge Mark Sher means that foreigners who are parents and caregivers of SA children will be allowed to remain in the country after their relationships with their SA spouses come to an end.

A GroundUp report says Sher has ruled that certain provisions of the Immigration Act and its regulations are unconstitutional.

The applicants complained that because their relationships had ended, their temporary residence rights in terms of the spousal visas issued to them, had automatically expired.

The applicants said this was 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.

‘They point out that while their spousal relationship might have come to an end, their parental relationships have not,’ said Sher. ‘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.’

Sher added: ‘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 Minister and officials of the Department of Home Affairs opposed the application, saying that the provisions were there to prevent abuse by foreigners who ‘entered into sham marriages’ to obtain rights of entry, residence and work. 

The GroundUp report says they denied that the provisions in the Act were discriminatory but said any rights limitation was justified and reasonable and commonly found in many open and democratic countries.

But Sher said the respondents had offered up very little, if any substance, about the infringement of parental rights and right to dignity.

For example, they had not shown why it was necessary for foreign parents to leave the country and their children in order to regularise their status.

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

Sher suspended the declaration of invalidity for 24 months to enable Parliament to remedy the inconsistencies but ordered a ‘reading in’ of the provisions in the interim.

Full GroundUp report

Judgment