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Groundbreaking judgment offers relief for foreign parents of children born in SA

Source: News24, 04/01/2023

The court has delivered a groundbreaking judgment which opens the door for foreigners working in South Africa who have children born on local soil.

Previously, they had to leave the country after breaking up with their spouses.

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In terms of sections of the Immigration Act, foreigners’ spouse visas terminated once their relationship with their South African spouses ended.

This meant that they either had to leave the country, even if it meant leaving their children behind, or they had to reapply for a visa to remain in the country. However, they could only do so from outside the country.

Various applicants, who come from countries such as France, Switzerland, Germany and Zimbabwe, turned to the Western Cape High Court to have the relevant sections of the act declared unconstitutional.

They all had children with their South African spouses, but their relationships had soured. Some are already divorced, while others are in the process of doing so.

In other cases the couples were not married, but lived together with their children, who are South African citizens as they were born here or had acquired citizenship on the strength of their parent’s citizenship.

All the applicants have been living and working in South Africa for many years and they have been supportive parents and caregivers to their children, sharing parental responsibilities with their partners both during and after the termination of their spousal relationships.

According to them certain sections of the Immigration Act, read together with the regulations, were inconsistent with the Constitution, to the extent that they required foreigners who are parents and caregivers of South African children to cease working here and to leave the country when their spousal relationships with their South African spouses come to an end, or they no longer cohabit together.

In one of the applications, a man who is facing being sent back to Kenya by the Department of Home Affairs said he and his ex-wife contribute equally to the maintenance of their son, who spends 50% of his time with him. He has a close relationship with his ex-wife and enjoys a strong bond with his son.

He would find difficulty in obtaining employment in Kenya where he would be compelled to return.

He has been working in South Africa for 14 years and considers this country to be his home.

The act regulates the admission of foreigners and their residence in South Africa, which may be temporary or permanent. The visa which is in issue in this matter is the so-called “spousal” visa, which includes spouses who are in a permanent heterosexual or homosexual relationship, but are not formally married.

The applicants asked the court to declare that a spousal visa shall remain valid and shall not expire after the termination of the spousal relationship, which constitutes the basis on which the visa was issued in the first place.

But Judge Mark Sher said this was not a solution, as such a visa would expire in time and they would then still be compelled to leave the country and would be unable to discharge their parental responsibilities and rights.

He said he could also not rule that these spousal visas should simply be extended, as this would, for example, allow “deadbeat foreign parents” who are not contributing to their children’s maintenance or care, to continue living and working in the country.

The judge said in his view the solution was to enable a foreign spouse who was the parent of a South African child citizen or permanent resident to apply for a fresh status.

This can be by means of a visitor’s or relative’s visa, depending on their circumstances.

This, he said, would allow them to reside and work in the country, in order to discharge their parental responsibilities and rights.

He, among others, ordered that certain passages should be read into the act, to allow for a foreigner who meets these requirements to apply for a change of status, to do so from within South Africa, due to the person’s exceptional circumstances.

The judge meanwhile gave Parliament 24 months to remedy the act so that it did provide an option to these parents, without them facing deportation.

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