18 Feb Foreign Parents of South African Children Granted Visa and Work Rights

The Constitutional Court of South Africa has just delivered a seminal judgment in the consolidated matters of Rayment and Others v Minister of Home Affairs and Others and Anderson and Others v Minister of Home Affairs and Others ([2023] ZACC 40). The judgment addresses the rights of foreign parents of South African children and invalidates certain immigration laws which, up to this moment, compelled such parents to leave the country and cease working when the spousal relationship ends.

Case Overview

The applicants were foreign nationals who had been married to or in good faith relationships with South African citizens. When these relationships ended, they were, in terms of the Immigration Act, required to leave South Africa and apply for a new visa from abroad. Such legal formalities caused not only a disturbance in their life but also an onerous burden on their children born in South Africa who became dependent on them for financial and emotional support.

Judgement Summary

The Constitutional Court declared sections 10(6), 11(6) and 18(2) of the Immigration Act and regulation 9(9)(a) of the Immigration Regulations unconstitutional. These provisions infringed on the right to dignity and the rights of the child in terms of Section 28 of the Constitution unjustifiably.

The court held that:

• Foreign parents who are actively involved in the lives of their South African children should not be forced to leave the country when their spousal relationships come to an end.
• Affected parents should be allowed to work in South Africa to provide for their children.
• The requirement that visa applications be made from outside the country caused unnecessary hardship and separation of families.

Although this gave Parliament 24 months to change the law, the court instituted an interim order that will allow eligible foreign parents to remain in the country and to continue working while their visa applications are processed.

Legal and Social Impact

The decision, therefore, has a huge impact on family rights, immigration law, and child welfare in South Africa. Before the ruling, foreign parents were at a stand with the law – leave the country at the risk of never seeing their children again or stay on illegally and risk deportation. In line with earlier Constitutional Court judgments, such as Dawood and Nandutu, it held that the unity of the family is sacrosanct and that the rights of children are constitutionally protected.

Expert Perspectives

June Luna from JLIA supports the recent ruling, emphasizing that it allows foreign parents to stay in the country with their children and work – a major improvement from previous restrictions that made it difficult for divorced foreign parents to remain and support their families. “This keeps foreign parents and children united – and a child’s interest is the most important,” she says.

While some warn that the ruling may place an undue administrative burden on Home Affairs, Luna notes that the department has been processing these applications efficiently since the court case. “Now that we have a Government of National Unity (GNU), we expect applications to be processed within a reasonable amount of time and hopefully there is the capacity to do so,” she added.

Conclusion

The Constitutional Court’s decision is an important turning point in the immigration policy of South Africa, favouring the rights of children and their parents over strict legal technicalities. Legislative changes are pending, but until then, this judgment offers direct relief to these families by allowing them to take care of and support their children without the intervention of unnecessary legal hurdles.

For further guidance and more information on applying for a visa under this new legal framework, contact June Luna Immigration Attorneys.