The Factual Background

The Stewart’s approached our law firm in 2015 after nearly a year of ‘toing and froing’ with the Department of Home Affairs for Mrs Stewart’s temporary residency visa on the basis of her South African spouse.

Prior to the significant changes in our immigration laws, which took place the 26th of May 2014, the Stewart’s made the decision to permanently move back to South Africa from Zimbabwe with their four children, whom are all South African citizens. They were advised, prior to the changes in law, to apply for a spousal visa once they had entered the Republic. This was common practice prior to the changes in the law and thus the Stewart’s finalized their affairs in Zimbabwe and moved to South Africa.

It was not soon after their arrival in South Africa that the law practically changed overnight. With no choice but to apply in South Africa, as they no longer had ties with Zimbabwe, they started the process of applying for Mrs. Stewart’s temporary residency.

The realities of the changes in the law soon became apparent. After submitting Mrs Stewarts’ application for a change of status, she was rejected on the basis of section 10(6) of the Immigration Act, which now prohibits a change of status from a visitor’s visa to another status in South Africa.

Mrs. Stewart gets refused twice

Mrs Stewart’s two appeals to the department were rejected, even though she explained to the Department her circumstances; namely that she moved her prior to the law changes on the advises of the Department and that her husband and four children, all of whom are South African, were resident here.

No substantive relief was given to the Stewart’s and whilst awaiting their final appeal outcome directed at the Minister of Home Affairs, they approached our law firm to proceed to court.

The Challenge in the Western Cape High Court

The Stewart’s challenge to the Immigration Act was that section 10(6) and in particular, 10(6)(b) were unconstitutional to the extent that it required the spouses of South African citizens and permanent residency holders to apply abroad and thus be separated from their spouses, as they would now need to return to their country of origin to apply for their initial temporary residency visa.

Our challenge was based on the Constitutional court case of Dawood, where Justice O’Regan made it very clear that marriage is an institution of vital importance and such an invasion of this right is an affront to a foreign spouse’s rights to dignity protected in terms of section 10 of the South African Constitution.

The Outcome

Donan AJ found that an application for a spousal visa from a visitor’s visa in terms of section 11(6) in South Africa is not a change of status, but rather a change of condition. This is due to the fact that a spousal visa is categorized as a visitor’s visa in terms of the Immigration Act. It was therefore found that the Second Respondent was to issue Mrs Stewart with a visitor’s visa in terms of section 11(6).

Secondly, the judgment by Donan AJ has given clarity to the rights of spouses to South African citizens and permanent residents. Namely, the correct visa for a spouse is in terms of section 11(6) of the Act, as opposed to section 18 which should be reserved for kinship lines and relatives of a citizen or permanent resident as relatives.

Due to the fact that if section 10(6) and 10(6)(b) is interpreted correctly, a spouse on a visitor’s visa can change their condition from within the Republic, there was thus no need to address the constitutionality of this provision.

How Does the Stewart judgement affect other foreign spouses?

It is now clear that a spouse to a South African citizen or permanent resident who enters South Africa on a visitor’s visa, in terms of section 11(1), is legally entitled to change their condition to a three year spousal visa from within South Africa.

An applicant for a spousal visa will still need to comply with the basic requirements of the Immigration Act, namely that a timeous submission with all required documentation must be provided and submitted to VFS Global for a fee of R1 350.

Additional Effects of Stewart judgment

In terms of the judgment provided, it appears as though an applicant who enters on a section 11(1) visa should be permitted to change their visa to any other category in terms of section 11, which includes, but is not limited to, volunteer, research and Regulation 11(4) visas.

Practical Matters with Home Affairs

Practically speaking VFS, who are the agents of Home Affairs, are subjected to their direction. It is at this juncture that there is some confusion. Home Affairs failed to appeal this judgment against them and the law of judicial precedent should prevail based on the court’s legal reasoning. If this judgement is going to be ignored by the Home Affairs Craig Smith & Associates will approach the courts again to compel them.

How can Craig Smith & Associates assist me?

At Craig Smith & Associates, we pride ourselves on our extensive knowledge of the law and the intricacies relating thereto in the advices, preparation and submission of temporary residence applications from within South Africa and abroad. As part of our practice, we provide advises regarding individual cases and assist with the compilation of documents for a complete and compliant application.

In the case of unreasonable delays on applications or refusals and appeals in finalising your application, we are able to litigate on your behalf and hold the Department accountable.

Aditional info by SAFLII:

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