The Constitutional Court has ruled that the Immigration Act was inconsistent with the Constitution and that it infringed on a foreign national’s right to human dignity.
Chief Justice Raymond Zondo handed down judgment on Monday. According to the Act, foreign parents or caregivers, even if they work in South Africa, had to stop working and leave the country if they ended their relationship with their spouse, which resulted in them leaving their South African-born children, sometimes without care or financial support.
The matter was brought to the Apex Court by parents Tereza Rayment and Richard Anderson, who were both foreigners, split from their South African partners.
They both were granted a spousal visa in terms of Section 11(6) of the Act and had been residing and working in South Africa. However, since their split from their respective partners, they faced deportation. The Act states that when the relationship ended, the foreign national’s visa lapsed, and they had to leave the country and apply for a new visa status.
However, since this could take many months and some may not be granted another visa, it would put the parent in an "invidious" position where they would either have to take the child with them or leave the child in South Africa and be separated from the child for a long time.
It also meant the parent would no longer be able to provide for their child after losing their job.
In a unanimous judgment penned by Zondo and agreed with by eight other ConCourt judges, the court upheld the applicants’ contention that it infringed on their human dignity.
“This court could not find any justification for the limitation or infringement of these fundamental rights,” Zondo said.
The Chief Justice made an order of constitutional invalidity that was to be suspended for two years to enable Parliament to “correct the defects” related to the Immigration Act identified in his judgment.
He further stated that during the period of suspension, such a visa will be deemed valid, pending the outcome of an application by the foreigner for a new visa within three months at the end of the good-faith relationship or marriage.
Further, he ruled that a parent or caregiver of a child with South African citizenship should be allowed to work in the country for the full duration of their visa.
kailene.pillay@inl.co.za
IOL