The Constitutional Court was approached to decide on the constitutionality of Regulation 9 (9) (a) of the Immigration Regulations, to the extent that it limits the right to dignity of foreign spouses of South African citizens or Permanent Resident Permit (PRP) holders.
Ms Nandutu who is a Ugandan national, entered South Africa on a Temporary Visitor’s Visa. At the time when she entered the Republic of South Africa she was pregnant with and in a relationship with Mr Tomlison, who holds permanent residence in South Africa.
Ms Nandutu then gave birth and married Mr Tomlison in South Africa, some months after her entry. In South Africa the couple was staying together. However, in order to validate her stay further, she applied for a Spousal Visa on the basis of her marriage to Mr Tomlison. The application was rejected, with the Department of Home Affairs (DHA) citing that section 10 (6) of the Immigration Act compelled Temporary Residence Visa holders to apply for change of status outside the Republic and not in South Africa. Further, the exceptions to this rule in Regulation 9 (9) (a) did not cover her situation, and therefore she was required to change her status out of South Africa.
The High Court Application
Aggrieved by the decision of the DHA, she approached the High Court for an Order to declare the regulation inconsistent with the Constitution. Her application failed, as the Court held that the regulation could reasonably be read together with the constitutional right to dignity.
The Constitutional Court Appeal
Unsatisfied with the High Court decision, Ms Nandutu applied for direct access to the Constitutional Court. The Constitutional Court was asked to decide on the following;
- Direct access to the Constitutional Court (without going to Supreme Court first)
- Constitutionality of regulation 9 (9) (a)
Decision of the Constitutional Court
- Direct access was granted by the majority of the Court.
- Regulation 9 (9) (a) was found to be inconsistent with the Constitution of the Republic of South Africa, in so far as it does not recognise the ground of being a spouse of an SA citizen or PRP holder as an exceptional case to apply for change of status whilst in the Republic. The Court found that this was a violation of the right to dignity in so far as it limits the right of foreign spouses to enjoy familial benefits during the time they are compelled to be outside the Republic to apply for change of status. The Court relied heavily on the decision in the consolidated case of Dawood v Minister of Home Affairs (2000) ZACC 8; Shalabi v Minister of Home Affairs 2000 (3) SA 936 (CC) ; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC).
In the above consolidated cases, the Court upheld that it was unconstitutional to compel spouses to leave family in South Africa in order to acquire immigration permits outside the Republic, especially where the acquisition is based on administrative discretion by the Department officials and which discretion is not provided for on how it should be exercised.
At Immigration Law Associates we welcome the decision in this case. Family arrangements are so essential to human existence and social standing, especially where there are spousal relations. Our view is that the requirement to have a spouse leave family to change their status outside the Republic, tilts on the opposite side of reasonability. The argument by the DHA in this case to say that the regulation 9 (9) (a) was promulgated for a legitimate government policy purpose does little to justify its stance, as government policy and purpose are subservient to the Constitution which is a manifest of recognising the dignity, freedom and equality of all persons who reside in the Republic.
Still it remains that other Temporary Visas may not be renewed or extended in the Republic, it is therefore important to consult with us beforehand so that we can comprehensively guide and assist you. Immigration Law Associates assists in the preparation of Visa/Permit requirements, application submissions, and facilitation of speedy resolution of the application at the Department of Home Affairs as well as Appeals for unsuccessful applications.
We stand ready to assist in a wide array of other legal immigration matters so that you can explore and pursue your opportunities across borders legally. Our approach is professional, comprehensive and counters the hurdles in immigration. Contact us for an appointment and consultation.
The information contained in this site is provided for informational purposes only, and should not be construed as legally binding advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
