ConCourt ruling on foreign spousal visa laws has no impact on refugees

A week ago, the Constitutional Court set the state a deadline to change immigration regulations that currently require foreign spouses or children of South African citizens to leave the country to renew their visitor's visas.

The court declared the rules constitutionally invalid because in effect, they separate families.

RELATED: Constitutional Court gives state two years to amend foreign spousal visa laws

Immigration attorney and founder of Eisenberg & Associates, Gary Eisenberg acted for the applicants in their appeal to the highest court in the land.

He explains that while the minister now has two years to change the regulations, in the meanwhile, the missing exceptional circumstances for foreign spouses and children of South Africans must be '"read" into the appropriate regulation.

Any foreign spouse or minor child of a South African person is affected - whoever comes into South Africa on a visitor visa may now change status within the country instead of having to laboriously and at great expense return to their countries of origin to do so.

Gary Eisenberg, Immigration attorney and founder - Eisenberg & Associates

From the moment that Constitutional Court order was handed down - a week ago, last Friday - we give the minister 24 months to actually write that language in and to make a set of constitutionally compliant regulations.

Gary Eisenberg, Immigration attorney and founder - Eisenberg & Associates

However, he points out, this judgment has no impact on refugees or asylum seekers.

The only case that has a direct bearing on them was handed down by the Constitutional Court in October 2018 which clearly states that any refugee or asylum seeker in South Africa, a spouse to a South African, may apply for a waiver from Regulation 9 and if that is granted, then to apply for a spousal visa within country, which applies to asylum seekers or refugees.

Gary Eisenberg, Immigration attorney and founder - Eisenberg & Associates

However birth certificates are a different story. An asylum seeker may give birth in South Africa to a South Afrian child. If the child is born of a South African citizen parent, then by law the child is born a South African citizen and may obtain a South African birth certificate.

Gary Eisenberg, Immigration attorney and founder - Eisenberg & Associates

For more on the implications of the ruling, listen below:


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Laws requiring foreigners married to South Africans to leave to renew their visas have been declared constitutionally invalid.

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