Court tells Home Affairs: Sort law out

Foreign spouses of South Africans won’t have to travel to their home countries to apply for renewal of visas

THE state has been given 24 months to fix laws that require foreign spouses of locals to travel to their home countries to renew visas.

In a majority judgment, the Constitutional Court ruled that the requirement by Home Affairs was constitutionally invalid.

The apex court ruled in favour of the application brought by James Tomlinson, a British citizen and permanent resident of South Africa, and his wife Sarah Nandutu, a Ugandan citizen.

South African citizen Christakis Ttofalli and his life partner Illias Demerlis, a Greek citizen, were the other applicants against Home Affairs.

Tomlinson married Nandutu two months after she entered the country in 2015 on a visitor’s visa.

Rejection of Nandutu’s spousal visa application also meant their son’s birth could not be registered. The child joined thousands born in the country but rendered stateless.

Ttofalli entered into a “life partnership” and started cohabiting with Demerlis within three months of her arrival from Greece.

The couples argued before the court that the requirement that foreign spouses travel back home for visa applications disrupted family life.

In the case of Nandutu, her child would have had to be without his mother during the period she travelled to Uganda and waited for the application to be processed.

Opposing the applications, Home Affairs maintained that its requirements were designed to prevent people from fraudulently overstaying in South Africa, otherwise foreigners would be able to enter South Africa on a visitor’s visa and remain on a permanent basis, provided that they marry a citizen or permanent resident.

Justice Nonkosi Mhlantla ruled that the department did not make a sufficient case for how the requirement affecting even children of foreign spouses prevented fraudulent marriages.

“In any event, on the respondents’ own evidence, they are clearly quite capable of conducting proper investigations to detect fraudulent marriages when visa applicants are within the country,” said Justice Mhlantla.

She said the requirements forced families to live apart while waiting for a decision on the application for a change of visa status. This also violated children’s rights. “This limitation strikes at the core of marital rights and their reciprocal obligations. It interferes with the fulfilment of cohabitation, a central feature of marriage. That limitation extends to the right to dignity of the South African citizen or permanent resident who is forced to be separated from their spouse.”

Justice Mhlantla granted Nandutu leave to submit an application for a visa while within South Africa.

She also gave Parliament 24 months to fix the legislation defects.