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Foreign parents’ battle: ConCourt declares Immigration Act invalid, demands amendments
The relevant changes to the Immigration Act should happen within two years.
Full bench of the Constitutional Court. Picture: Gallo Images/Alon Skuy
Nearly a month after a scathing judgment on the Immigration Act, more sections of the legislation will have to be rectified, the Constitutional Court (ConCourt) has ruled.
The ConCourt on Monday delivered its judgment on a high court battle over sections of the Immigration Act and its regulations that prevented foreign parents from remaining in South Africa to care for their children after separating from a South African spouse.
The first application was brought by Tereza Rayment and five others – including Zimbabwean national Tapiwa Tembo – to the ConCourt, while the second one was filed by Richard Anderson and three others.
The applicants, in their papers, argued that the Act and its regulations were inconsistent with the Constitution.
High Court ruling
In June 2022, the Western Cape High Court declared the Act invalid on the basis that the law violated various constitutional rights of divorced foreign parents.
The Immigration Act required that such parents should cease to work in South Africa and leave the country and apply for a new visa status from outside the country.
This requirement meant that foreign parents would be put in an invidious position where the person had to either take their child with them or leave the child behind and be separated from the child for a long time while awaiting authorisation to apply for status, which could take many months.
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It also meant that a foreign national who is a parent to a child, who is a South African citizen, would no longer be able to support their off-spring because they would have lost their job.
The high court, therefore, suspended the law’s declaration of invalidity for two years and ordered the Department of Home Affairs to “consider” allowing the applicants to remain in South Africa under section 32(1) of the Immigration Act.
The matter was then brought before the ConCourt for confirmation. Arguments were heard in February this year.
‘Criminal offence’
In a unanimous judgment, Chief Justice Raymond Zondo confirmed that the Act was inconsistent with the Constitution and was, therefore, declared invalid.
“There can be no doubt that the provision in the Immigration Act that precludes from working or conducting a business a foreign national whose spousal visitor’s visa has expired because the spousal relationship has ended quite clearly limits not only the child’s right to human dignity but also the right to human dignity of the parents. Indeed this provision also constitutes a limitation of the foreign national’s right to human dignity,” Zondo said.
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“A law that precludes or makes it a criminal offence for anyone to do any work or conduct any business limits such person’s right to human dignity. The indignity is made worse when such foreign national has a child or anyone lawfully dependent upon him or her to maintain and support.
“Then there is the provision in the Immigration Act that requires the foreign national whose spousal visitor’s visa has expired to leave South Africa and apply for a change of status from outside the country,” the Chief Justice continued.
Tembo’s ‘dirty hands’
Zondo further referred to Tembo’s case within the entire litigation.
Tembo was declared an “undesirable person” in terms of section 30 of the Act by Home Affairs after he entered South Africa illegally years ago and frequently made trips between the country and his homeland.
The Zimbabwean national, who has a child with a South African citizen, therefore, sought to have the Home Affairs’ decision set aside by the Western Cape High Court.
He had argued, in his court papers, that Home Affairs did not take into account the interests of his minor child when he was declared undesirable.
But Zondo highlighted that Tembo approached the high court with “dirty hands”, given that he entered and left South Africa illegally on multiple occasions.
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The high court’s decision was justified, according to the Chief Justice.
“He has stayed in South Africa illegally for many years and now he approaches our courts for relief. As long as Mr Tembo has not provided an acceptable explanation for engaging in a series of contraventions of the Immigration Act, his hands remain dirty and our courts should not entertain his application for benefits of the very Act of Parliament which he has contravened deliberately for many times.
“No self respecting country can allow someone who has conducted himself towards its laws the way that Mr Tembo has conducted himself towards our Immigration Act to approach its courts and seek benefits under the same Act when it suits him or her after deliberately contravening that Act countless times,” the judgment further reads.
The ConCourt dismissed Tembo’s appeal application against the high court ruling and was ordered to pay costs in his personal capacity.
Declaration of invalidity
In proposing a remedy to the constitutional defects, Zondo pointed out that the order has largely been agreed to the applicants and Home Affairs.
The Chief Justice explained that the court was not able to confirm the high court’s ruling “because that order was seriously flawed”, but nonetheless altered the order to align with the ConCourt’s judgment.
“The parties are agreed that whatever declaration of invalidity this court makes will have to be suspended for 24 months to enable the competent authorities to correct the constitutional defects in the Immigration Act and regulations that have been identified in this judgment.
“I agree with this. The parties have also agreed that the remedy of reading-in should be invoked in respect of certain sections of the Immigration Act and the regulations. I agree that the remedy of reading-in is appropriate in this case.”
The ConCourt, therefore, declared the Act as invalid and ordered that the relevant amendments to the law should happen within two years of the delivery of its judgment.
“Should Parliament fail to correct the constitutional defects in Immigration Act within 24 months from the date of this judgment and should the first respondent fail to correct the constitutional defects in the regulations within the 24 months from the date of this judgment, the reading-in of the Immigration Act and the regulations in this order shall become final.”
The respondents, including Home Affairs Minister Aaron Motsoaledi, and director-general Livhuwani Makhode, were to pay the costs of Rayment and William’s applications, including the costs of two counsel.
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