Court clarifies Spouse’s Right to Visa

On the 29th of January 2016 the High Court of South Africa`s Western Cape Division handed down a judgement that has clarified an issue that has been the cause of much confusion in SA Immigration and in the process opening the door for many foreigners wishing to change apply for a spouse visa without needing to go back to their countries of origin to apply for the Visa. The case of Stewart v Minister Of Home Affairs ( case 12520/2015) also opened the door for other applications to be submitted in the country without the need for the applicants to first go back to their country of origin by clarifying the question around Change of Status and Conditions from a Visitors Visa. We explore these issues in this article and shed light on this controversial issue.

h3. Court Case

The case was brought to court by the Stewart family on the 4th of November 2014 challenging the decision of the Department of Home Affairs to reject Mrs Stewart`s application for a Spouse Visa on the grounds that she had applied for a change of status from visitors visa, something that is expressly prohibited by the Act in section 10(6). Section 10(6) of the immigration Act provides that a foreigner other than the holder of a medical treatment visa or visitors visa, may apply to the Director General, in the prescribed manner, to change his or her status or terms and conditions attached to his or her visa or both such status and terms and conditions.

The Second challenge was that section 10(6) and 10(6)(b) were unconstitutional to the extent that the required Spouses to be separated form the families whilst they return to their countries of origin to apply for a spouse visa. This challenge was supported by the decision of the Constitutional Court in Dawood v the Minister of Home Affairs 2000 (3) SA 936 (CC).

In deciding for the applicants the court found that when reference is made to ‘Spouse visa” in the Immigration Act , it is made in terms of section11(6) not section 18 relatives category. The court pointed out that ” What is meant by the general term when the Immigration Act is accurately applied is a visitors visa contemplated in section 11(6) of The Act ” , and not a section 18. The court drew from the provisions of section 27(g) which makes reference to a member of the immediate family and the two distinct definitions of Spouse and Relative in section 1. The court then looked at the provisions of section 10(6)(b) and found that what is prohibited by the section is a change of status alone and not a change of conditions. The court then went on to state that the application from a visitors visa or tourist visa was a change of conditions and therefore allowed by the Act. Counsel for the Department also conceded this fact and the court granted the relief for the applicant ordering that the spouse visa be issued to Mrs Stewart.

h3. Consequences

So what does this mean for everyone else?

# A spouse visa with or without an endorsement is couched under Section11(6) only and not section 18. The confusion created in practice was the cause of much debate. The accepted practice was that the a spouse who is not applying for any additional endorsement had to apply for a relatives visa. This was obviously absurd as as spouse is not a kin and did not meet the definition of kinship.

# A spouse to a citizen or permanent resident must therefore apply for the a visitors visa in terms of section 11(6) of the Act. The application can be applied for in South Africa without the need to leave the country and apply from the applicant country of origin. This means that every spouse in SA who has been unable to lodge an application due to the fact that he or she entered the country on a visitors visa may now apply for a change of conditions from a visitors 11(1) to a Visitors 11(6).

# The other most significant impact of this decision is that the financial assurance requirement falls away . Section 11(6) read with regulation 3 contains no financial assurance requirement. Financial assurance is only a requirement under Section 18 and is not found under section 11(6). The will give much relief to applicants who wanted to apply for a spouse visa to join their spouses in SA but because their South African Spouses did not earn the required R8500.00 they did not qualify for the Visa.

# The other significant effect of this decision is that ever other visa under section 11 is subject to the same principle. Section 11 has 12 visa sub categories that a person can apply for and now they can lodge the application in South Africa without needing to go back to the country of origin.

h3. Conclusion

As with everything in South Africa and immigration, it remains to be seen if Home Affairs will concede the point and allow applications to be submitted as directed by the court. There is no question of a precedent being set in this matter as the Act is already clear on what the requirements and process should be. Applications for a change of conditions of a visitors visa are allowed by law and VFS and DHA should consider these applications accordingly.

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