According to South Africa’s Immigration Act (13 of 2002), an adult or minor may not enter or leave the country through a port of entry without a valid passport. In addition to a being a holder of a valid passport, a foreigner who does not hold a permanent residence permit must also be issued with a valid visa to enter the country.

There are several purposes for which a visa may be issued. In this article, I will deal mainly with visas issued for “staying with a relative” or what are called “visitors’ visas”. A visitor’s visa is issued by the Director-General of the Department of Home Affairs to a foreigner who provides financial or other prescribed guarantees for a period of up to three months. This visa may be renewed for a further three months. Alternatively, the visa may be issued for a period of up to three years to a foreigner who proves they have sufficient financial resources and are in the country for an academic sabbatical; voluntary or charitable activities; research; or any other prescribed activity. The holder of a visitor’s visa may not conduct work within the Republic unless they meet the prescribed conditions and are authorised to do so by the Director-General.

A question that arises for many foreigners in South Africa on a visitor’s permit is: “What happens if my status changes while I am still in the country?” Their status would change, for instance, if they marry a South African citizen or a foreigner who is a permanent resident in South Africa.

The answer to this question is contained in section 10(6) of the Immigration Act. This section provides that

  • Subject to this Act, a foreigner, other than the holder of a visitor’s or medical treatment visa, may apply to the Director-General in the prescribed manner to change his or her visa, or both such status and terms and conditions, as the case may be, while in the Republic.
  • An application for a change of status attached to a visitor’s or medical treatment visa shall not be made by the visa holder while in the Republic, except in the exceptional circumstances as prescribed.

These exceptional circumstances, which are outlined in Regulation 9(9)(a) of the Immigration Regulations GNR 413 GG 37679 (22 May 2014), are that either the individual needs “emergency lifesaving medical treatment for longer than three months” or “is an accompanying spouse or child of a holder of a business or work visa who wishes to apply for a study or work visa”.

These circumstances do not apply to a foreigner whose status has changed by marrying a citizen or a foreigner with permanent residency. Such individuals are required to leave South Africa before they can apply to change their status. Is it constitutional to compel foreign spouses or children of citizens or permanent residents to leave the country to apply for a change to their visa status? Doesn’t this unjustifiably limit their right to dignity (the right to family life) and the rights of children?

The Constitutional Court recently dealt with this issue in the case of Nandutu and others v Minister of Home Affairs and others (2019) ZACC 24. In this matter, the first applicant, Ms Robinah Sarah Nandutu, is a Ugandan citizen who is married to and resides with the second applicant, Mr James Ferrior Tomlinson, a British citizen and permanent resident of South Africa. Ms Nandutu first entered South Africa on 20 February 2015 on a visitor’s visa that was issued to her in Kampala, Uganda, on 19 February 2015. It was issued on condition that her visit was for holiday purposes and would not exceed 30 days, and that she held a return ticket. She was three months’ pregnant at the time and the purpose of her visit was to join Mr Tomlinson, the father of her child.

On 21 April 2015 Ms Nandutu married Mr Tomlinson and the next day applied for a temporary visitor’s visa. At the time, she understood this was a spousal visa, which would allow her to live with her husband in South Africa. (A spousal visa allows foreigners who have been married for less than five years to apply for temporary residency. Once a marriage has been in place for five years, permanent residency can be applied for.) The couple’s son was born on 14 August 2015 but they were unable to register his birth because Ms Nandutu lacked a valid temporary residence visa.

Ms Nandutu’s application for a temporary visa was rejected on the basis that there had been no change of status or conditions attached to her temporary visa while in the country in terms of section 10(b) of the Immigration Act of 2002. She appealed to the Director-General but the appeal was rejected for the same reason. A subsequent review application to the minister in terms of the Immigration Act as well as an application to the High Court challenging the constitutional validity of the Regulation 9(9)(a) of the Immigration Regulations did not yield a positive result for her. She finally approached the Constitutional Court to vindicate the rights of foreign spouses and children who are required to leave South Africa in order to lodge applications to change their visa status.

Ms Nandutu and Mr Tomlinson were joined in this court case by a couple in a life partnership who had a similar dispute. However, for the sake of time and simplicity, I have opted not to deal with the facts relating to these other applicants.

The applicants in this case (Ms Nandutu and others) challenged the regulation on the grounds that the rights accorded by the “exceptional circumstances” mentioned in section 10(6)(b) of the Immigration Act are not extended to the foreign spouse or child of a citizen or permanent resident. They argued that their right to dignity was unjustifiably limited, as the requirement to change visa status from outside of the Republic impairs the ability of spouse to honour their obligations to cohabit and support each other. Therefore, they sought to have “the spouse or child of a citizen or permanent resident” read into regulation 9(9)(a) to remedy the asserted inconsistency and unconstitutionality.

Earlier I noted that the exceptional circumstances which allow holders of visitors’ visas to apply for a change of status without leaving the country do not apply to visitors whose status changed by virtue of marriage to or being a child of a citizen or permanent resident. The applicants in this matter thus sought relief by being included in these “exceptional circumstances”.

As expected, the respondents in this case, the Minister of Home Affairs and the Director-General of the Department of Home Affairs, opposed this application. They submitted that there is a reasonable government purpose in implementing and maintaining the general rule and that this purpose would be undermined if the applicant’s primary relief is granted. They argued that as a sovereign state South Africa has adopted a risk-based approach of externalising borders or “offshore border management”, which prevents undesirable individuals from establishing themselves within South Africa.

Furthermore, the respondents argued that the exclusion of foreign spouses of South African citizens and permanent residents from regulation 9(9)(a) prevents persons from fraudulently overstaying in South Africa. If the exclusion did not exist, those persons would otherwise be able to enter South Africa on a visitor’s visa and easily remain on a permanent basis, provided that they marry a citizen or permanent resident.

The Constitutional Court acknowledged that it is important for the government to be able to regulate which individuals enter the country and that border management protects the country’s interests by ensuring its security. However, it found that the respondents had not shown why South African authorities could not perform the requisite range of security checks and enquiries for visa applications to a suitable standard when applicants are already legally within the country’s borders.

In relation to the prevention of fraudulent marriages, the court found that the respondents had not made a sufficient case for how the requirement imposed on spouses and children of citizens or permanent residents is linked to that purpose in any proportionate sense. That was particularly so given that the respondents’ own evidence showed that they are capable of conducting proper investigations to detect fraudulent marriages when visa applicants are in the country

According to the Constitutional Court, the right to family life is not a coincidental consequence of human dignity but a core ingredient of it. The court further stated that the respondents had failed to make a case for why the requirement that spouses and children of South African citizens or permanent residents must leave the country to apply for change of a visitor’s visa does not constitute limitation of at least the right to dignity. The respondents had failed to prove that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as required by the Constitution. The court held that the respondents had not provided sufficient justification as to why spouses or children of citizens or permanent residents should be excluded from the categories of persons covered by the “exceptional circumstances” of regulation 9(9)(a).

As a result, the Constitutional Court declared that Regulation 9(9)(a) of the Immigration Regulations is inconsistent with the Constitution and that the rights accorded by the “exceptional circumstances” of section 10(6)(b) of the Immigration Act should be extended to the foreign spouses or children of South African citizens or permanent residents. This declaration of invalidity is, however, suspended for 24 months from the date of the order (28 June 2019). During this period, the following is to be read into Regulation 9(9)(a): “(iii) is the spouse or child of a South African citizen or permanent resident.” The Constitutional Court made it clear that should the defect not be remedied within 24 months, the interim reading-in stated above shall become final.

Thus, it is indeed unconstitutional for foreign spouses and children of South African citizens or permanent residents who hold valid visitors’ visas to be compelled to leave the country purely to apply for a change of visa status.

By Sannie Ncube

Managing Partner

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