DIVORCE, VISAS AND FOREIGN SPOUSES IN SOUTH AFRICA
28 October 2019
Where a foreign national resides in South Africa on the basis of being a spouse, divorce can have devastating consequences for the expat’s hopes of continuing to reside in SA. But with some careful planning, that need not always be the case.
Where a divorce happens, the default setting of the Department of Home Affairs emerges from section 43(a) of the Immigration Act (the Act) which provides that:
“A foreigner shall –
- abide by the terms and conditions of his or her status, including any terms and conditions attached to the relevant visa or permanent residence permit, as the case may be, by the Director- General upon its issuance, extension or renewal, and that status shall expire upon the violation of those terms and conditions.”
The sting in the proverbial tail appears from the last clause of that section:
“ that status shall expire upon the violation of those terms and conditions.”
In practice this means that where the expat has a one of several visas that links – and limits – their temporary residence to being in SA in order to “accompany” their spouse, that visa will “lapse” on the date of the divorce.
This applies whether or not the other party to the failed relationship is a South African or is an expat himself/herself, who is here, for example, on a work visa, study visa, etc.
A very sensitive problem that must be flagged and which is not addressed by the Immigration Act [and has not yet been considered by the courts] is what happens if the divorce has been brought about by an abusive spouse – despite South Africa’s no-fault divorce regime. This could leave the abused expat spouse facing the tragic dichotomy of either being removed from the country or being forced to return to the situation of abuse. And that vulnerability could as easily extend to the expat spouse fears attending custody or maintenance hearings to avoid arrest and detention by Home Affairs’ officials some of whom see it as their duty to support the SA spouse, right or wrong.
What is the position where an expat is in SA as a permanent resident which status was granted on the basis of him/her being the spouse of a South African citizen (which in this context includes another person with permanent residence status). Everything will hinge on the Conditions which have been recorded at the bottom of the PR Permit. Permits issued on the basis of a spousal relationship after June 2014, are all subject to the Proviso to section 26(b) of the Act:
“ Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;”
In other words, if the date of issue of the PR permit – as reflected on the Permit – is 1 July 2014 and the couple get divorced on or before 30 June 2016, that Permit lapses on the date of their divorce.
In practice the holder of a PRP which has been issued on the basis of the holder being in a spousal relationship, must report to Home Affairs (and not VFS) with their spouse, to be interviewed by immigration officers, to confirm that the relationship continues to exist.
It can happen where a divorce is pending either whilst the PRP application is itself pending or, if granted, during the two-year window, that as part of the divorce negotiations, or for whatever other reason, couples will agree to “say nothing”. This would be an unwise arrangement. The restriction is statutory. So, even if the ‘scheme’ comes to light years down the road, the PRP will still have lapsed. And again as a matter of practice, the longer the scheme has gone undetected, the more difficult it will be to fix it – assuming it is fixable at all – when it does come to light.
In all the situations described above, when the visa or PRP lapses that expat automatically becomes an “Illegal Foreigner” (I/F).
This negative status is frequently misunderstood.
On the one hand, section 42(1)(a) of the Act provides that:
“ Subject to this Act, and save for necessary humanitarian assistance, no person, shall aid, abet, assist, enable or in any manner help –
(a) an illegal foreigner; . . .”.
Whilst the extremely wide ambit of this subsection might raise questions about its constitutionality, the reality is that until something is done about it, this is the law.
A person who is an I/F is not allowed to apply in SA for any kind of visa. Instead, they must first apply for legalization (also known as getting a Letter of Good Cause) if they can demonstrate that there is good cause which would justify the Director General granting such legalization. If that is approved, then the expat may apply for a new visa – assuming they qualify for any kind of visa.
In terms of the scheme of the Act, the only alternative remedy to being an I/F, is for the expat to leave the country which automatically ends the I/F status (because you first have to be in SA to be an I/F). However, because the expat will not have a visa or permit, when they exit the country they will instead be declared to be an “Undesirable Person” on account of their overstay. That decision can and should be appealed within 10 working days of the decision being taken. If the undesirability is lifted, the person can then apply for a new visa to return to SA, depending on their circumstances.
The other side of the I/F ‘coin’ is that it is not unknown for police, other civil servants, court officials and the like to assume that this means that the State cannot render any support at all to the I/F and/or that a person without a visa does not have the right to even walk the streets of South Africa. This is not correct. In the matter of Ulde v Minister of Home Affairs 2009(4) SA 522 (SCA) the SCA pointed out that the Constitution guarantees the right to liberty to “everyone” and, at paragraph , that the State’s powers to detain anyone – and in this case, those of the Department of Home Affairs – must be exercised in favour of that person’s liberty.
What can be done in this situation – assuming that the expat spouse considers that he/she needs to remain in SA?
The starting point is to be aware that the Act does not make provision for a ‘quick fix’ to what is often a tragic dilemma for the affected spouse.
The least difficult scenario generally occurs where the couple have not yet divorced and the expat is on a valid temporary residence spousal visa. In this situation, the expat needs to apply – and urgently – to change the status of their spousal visa to whichever other category of visa which they need and might qualify for. Depending on the expat’s circumstances, this visa application might require that the expat first apply for a special dispensation from the Minister to allow the expat to meet the requirements of whichever visa, given their specific circumstances.
If however the expat’s visa has lapsed as a result of the divorce then, as has been mentioned above (again assuming that the expat wishes or needs to remain in SA), the expat’s first step will be to seek “legalization” and then if that is approved, they can then start with the visa application process. The expat also has to formally notify the Director General – “immediately” – of their changed circumstances [Regulation 3(5)].
However, getting that legalization is often a challenge in its own right. This is because in terms of Regulation 30(1)(a) to the Act, the test to be satisfied is that the expat must:
“ . . . demonstrate, in writing, to the satisfaction of the Director-General that he or she was unable to apply for such status for reasons beyond his or her control; . . .”
Immigration officers will want to see a justification along the lines of a medical emergency or the like. The fact that the expat did not do anything about sorting out their status prior to the divorce, given the expat’s statutory duties, may not satisfy an immigration officer that the expat’s explanation meets the required threshold.
If the expat’s PRP has lapsed, the same process is to be followed – mindful, as mentioned above, that the expat’s status changes from having permanent residence, which includes having most of the rights of citizenship – to be an I/F. This will include having to surrender their ID document with all the problems that entails in both the public and private sectors. For example, their right to take up employment ends immediately which will likely result in the termination of employment. Further, the PRP holder may have been granted a bond on the basis of that permanent residence; not many institutions will lend 25-year money to someone who now only has permission to be in the country for three years (if that).
It is imperative that the affected expat seeks proper legal advice before the house of cards, collapses.
By way of a conclusion it is important for the expat spouse to be aware that he or she is not without remedies as they proceed with the dissolution of a marriage. There are important protections available. But these are largely to be found in the Bill of Rights rather than in the Immigration Act.