Chris Watters

DIVORCE AND RESIDENCE VISAS

September 19, 2015adminNews

DIVORCE AND RESIDENCE VISAS – THE VULNERABLE FOREIGN SPOUSE IN SOUTH AFRICA

In the middle of the human tragedy that often accompanies a divorce, not least where children are involved, a problem that is parachuted into the mix is what happens to the residence status of the foreign spouse whose visa and right to remain in SA is expressly linked to the continued existence of the couple’s marriage or their spousal relationship.

To better understand the challenges posed by the collapse of such relationships, the starting point is to consider the visa regime applicable to these foreign spouses – then we will look at what can happen (and what cannot) when things fall apart.  There are several key principles applicable to visas for foreign spouses.

The first is that a foreign national does not have to be married in order to obtain a residence visa to accompany his or her spouse in SA.  And the couple’s sexual orientation is irrelevant.

If the couple are not married, the relationship should be at least two years old before the accompanying spouse qualifies for a visa based on that relationship.

If the foreign spouse gets a visa to accompany his or her partner (married or not) to SA which partner is in turn coming to SA on a visa of any sort (eg a work visa, study visa, treaty visa), the accompanying spouse has to be a ‘stay-at-home’ partner.   That visa does not include permission to study or do work of any nature (including volunteer activities).  If they want to take up any such activities, the accompanying spouse must formally apply and meet all the requirements of that specific visa class.

If the foreign spouse’s partner is a South African or a person with permanent residence status in SA, the position is different in important respects.  The foreign spouse does again qualify for a visa to accompany their SA partner (subject to the marriage or 2-year minimum relationship requirement) and again, this visa does not allow the foreign spouse to do anything else other than ‘stay-at-home’.  But if he or she wishes to take up employment there is a special dispensation.  The would-be employer merely needs to make an offer of employment and the spouse can approach Home Affairs for a change of the conditions of the current visa.  The requirement for Department of Labour screening, falls away.

But all of this changes if the spousal relationship ends.

The visa for either category of spouse (including their authorisation to work) is conditional upon the continued existence of that spousal relationship.  When the relationship ends, the accompanying spouse’s visa lapses.  And spousal relationships tend to end long before the divorces happen.

So what happens if the foreign spouse needs to remain in SA – whether in the short, medium or long term, whether to properly contest aspects of the divorce or because of the rights of the couple’s children and the right to family life or simply because of the foreign spouse’s right to dignity in his or her life?  What happens if the ex-foreign spouse needs to work whether to support his or her family or simply for the sake of their own dignity, but does not qualify in the ordinary course for a work visa of any sort?

Since the watershed Constitutional Court jurisprudence of the Nineties in this regard, our immigration legislation has gone through a number of changes with a further change pending.  Throughout these changes, the position of the vulnerable foreign spouse has not been addressed adequately or at all.   Put simply, the Immigration Act does not provide for a convenient visa or permit for the erstwhile accompanying foreign spouse.

To further complicate matters, the ex-spouse can face the proverbial ‘perfect storm’ of immigration enforcement measures – which have been described as being “draconian”.

In terms of the Regulations to the Immigration Amendment Act [which came into effect on 26 May 2014], the foreign spouse “must immediately inform the Director-General when his or her relationship ceases to exist”. 

Whilst the Act does not use the language of or require ‘irretrievable breakdowns’ and whilst there is also no clarity as to as what point in time a spousal relationship “ceases to exist” – should the parties be ad idem on the matter or how long should hopes for a reconciliation be entertained – Section 43(b) of the Act provides starkly that a foreigner shall depart upon expiry of his or her status.  Section 49(1)(a) criminalises remaining in the country in contravention of the Act.   And whereas the Act defines an illegal foreigner as being anyone who is in the country in contravention of the Act, linked to that, section 32(2) provides an illegal foreigner shall be deported and then section 34(1) allows an immigration officer to arrest, detain and deport illegal foreigners.  On top of it all, section 42 sets out a host of measures to limit and penalise support to illegal foreigners which may constitute “aiding and abetting” the illegal foreigner.

Despite the absence of a convenient visa solution to the vulnerable foreign spouse who has been ‘set adrift’, he or she is not entirely without remedies in terms of the Immigration Act should they be faced with any or all of these measures.  Section 8 of the Act provides for a range of internal reviews and appeals against decisions taken in terms of the Act.  A frequent problem is that sometimes officials cut corners with these processes or are actually unaware of all the protections afforded by the Act to the affected persons they plan to remove.   Another problem is that these internal appeal processes can take many months – even years – to be finalised leaving the vulnerable former spouse seriously exposed amidst all the trauma of the divorce.

The challenge in these situations ultimately is that there is just is not an effective, practical ‘interim’ remedy available to the vulnerable foreign spouse that clearly defines her or his rights and duties.   Mindful of the duty to exhaust domestic remedies before immigration decisions can be challenged, seeking an interim remedy may have to take the form of approaching the courts.  This does also raise the issue of to what extent Rule 43 relief can or should include undertakings to the vulnerable foreign spouse as regards visa processes and financial support to pursue the various legal remedies.

When all is said and done, extreme vigilance is required to ensure that immigration legislation is not used against the vulnerable former spouse such that they find themselves being railroaded or bullied out of the country or their interests.

Chris Watters

Bedfordview | mail@chriswatters.co.za