Cape Town - The court challenge against sections of the Immigration Act that requires foreign parents or caregivers, even if they work in SA, to stop working and leave the country if they get divorced or no longer live with their spouse, has landed in the Constitutional Court.
The apex court heard the matter on Tuesday, for confirmation of an order by the Western Cape High Court, which found that sections 11(6), 18(2) and 43 of the Immigration Act 13 of 2002, read with certain regulations under the Act, were inconsistent with the Constitution.
The matter stems from parents Tereza Rayment and Richard Anderson, who were both foreigners, split from their South African partners.
Each foreign national would have been granted a spousal visa in terms of section 11(6) of the Act, and had been residing and working in South Africa.
According to court documents, the Immigration Act and the Regulations provide, at present, that (divorced foreign) parents must elect either to leave the country in order to apply for a new visa or permit, or remain illegally in the country, and work illegally, in order to support their dependent children while awaiting authorisation to apply for status.
Migrants and refugees activist NGO, Scalabrini Centre, said they welcomed the high court’s findings in protecting and safeguarding the bests interests of the children.
Head of advocacy and legal advisor at Scalabrini Centre, James Chapman, said: “If parents are unable to perform their parental responsibilities to care for and provide for their children on account of the termination of the relationship with the child/children’s other parent, then this is a position that cannot meet Constitutional muster and must be addressed.
“There is precedent for certain categories of migrant to change their immigration visa from one type to another without being required to leave the country to do so.
“In the case of a parent facing being separated from their child and not being able to work and provide for their child in South Africa, this is a clear instance in which provision should be made to change one’s visa without being required to leave the country.”
The parties argued in their submissions to the court: “Parents – whether South African or foreign – should not be compelled to choose between supporting their children or complying with the law.
Similarly, children should not be denied parental care or maintenance because of the nationality of their parents, either temporarily or permanently.”
Failure by a foreign national to leave South Africa upon termination of their spousal visas would make them vulnerable to deportation as they are considered to be illegal foreigners.
The respondents, which includes the Department and Minister of Home Affairs, accepted that there was a lacuna, or gap, in the Act and the regulations.
However, they opposed the application for leave to appeal against the declaration of invalidity, insofar as the High Court declared that the whole of the Immigration Act was unconstitutional.
The respondents argue that the applicants seek to create a system that would allow persons in their position to remain and work in South Africa on the strength of their spousal visa even though they are no longer spouses of South African citizens or permanent residents
The matter continues.
Cape Times