Section 10(6) of the immigration Act provides that a foreigner other than the holder of a medical treatment visa or visitors visa, may apply to the Director General, in the prescribed manner, to change his or her status or terms and conditions attached to his or her visa or both such status and terms and conditions…. This section is perhaps one of the many changes that have created a lot of confusion and uncertainly for would be travellers and applicants for South African Visas. A lot has been said about who can lodge an application for a visa within the republic and there have ben a series of conflicting decisions by the department that have people with more questions than answers. In the article we will distinguish between the two, status and condition, and we will also answer the question, who can apply for a visa in South Africa?.
The word status is defined in section 1 of the immigration Act as the status of a person as determined by the relevant visa or permanent residence permit granted to a person in terms of this Act. If we apply the ordinary dictionary meaning to the word, the definition per the oxford dictionary is legal standing. Such ordinary dictionary meaning when integrated with the technical meaning assigned to the word provides us with a better understanding of what a status is. It means the legal standing of a person as determined by the relevant visa or permit. Put in practical terms, if you have a General Work Visa then your status is that work visa. The Act provides for a series of visas and permanent residence permits and if you hold any of these you status is determined by the type of visa or permanent residence.
The word condition unlike status is not defined in the Act. There are references made to the power of the Director General to impose any reasonable terms and conditions to a permit or visa as the case may be. The word has a several meaning however the more appropriate definition would in my view be, to state a requirement that must be fulfilled, or to make something dependent on a requirement, especially in a legal contract. Following the above example of the General work visa being the status, a condition would be that the holder takes up employment with company XY as a consultant for 5 years.
Therefore in section 10(6) provides the avenue for the submission of an application to either change the status or conditions only or to change both the status and conditions at the same time. What is clear however is that these two are not one in the same but they are also not mutually exclusive. You can apply for a change of status or conditions or both.
On the subject of who can apply for a change of status or condition, the Act excludes only holder of a visitor’s visa or port of entry visa and medical treatment visas from applying for a status from within the Republic. There appears to be a bit of confusion in so far as whether this exclusion applies to every visitor’s visa. There are two main types of visitors visa`s, one issued for 3 months at a time and one issued for more than 3 months but up to 3 years. An example is a spouse visa with the work endorsement, volunteer’s visa, research visa, basically all the visas in 11(1)(b) and 11(6). Whether all visitor visa holders are excluded is matter if interpretation and as such we have to rely on the rules of interpretation. Accepting that every holder of a visitor’s visa regardless of the type is excluded form applying would render the section absurd and irrational. The law favors the interpretation that would not render the aw irrational leading us to believe that only visas issued in terms of section 11(1)(a) are excluded.
The exclusion in 10(6) is not absolute, an exception to the rule exist, albeit a limited one and it is found in 10(6)(b) wherein the Act provides for exceptional circumstance as prescribed. We find these in the regulations and specifically regulation 9(9) which provides that the exceptional circumstances contemplated in section 10(6)(b) of the Act shall-
(a) in respect of a holder of a visitors visa , be that the applicant-
(i) is in need of emergency life saving medical treatment for longer than three months.
(ii) is an accompanying spouse or child of a holder of the business or work visa, who wishes to apply for a study or work visa.
(b) in respect of a holder of a medical treatment visa , be that the holders continued stay in the republic is required for any purpose related to a criminal trial in the Republic: provided that such application shall be initiated by the relevant Deputy Director of Public Prosecution and addressed to the Director General.
There are clearly a number of things wrong with this section firstly what is the rationale for limiting the change of status from a visitors visa to children and spouses of holders of business and work visas only? What about individuals on other visas such as study, retired persons, exchange visa etc., what legitimate government purpose is served in limiting their rights? It is doubtful that this section can with stand the scrutiny of the Equality clause of s9 of the Constitution. I do not believe this was intention but more the result of editorial errors. Take for example (a)(i) above, when read together with (b) it begins to make more sense. It should read in respect of a holder of a medical treatment visa, be that the holder is required to undergo life saving medical treatment for longer than 3 months. However confusing or senseless the section maybe it remains the law and has to be observed. Elsewhere in the regulations specifically the application form 1740 we get a clearer understanding of the section , the form contains a declaration to effect that the applicant acknowledges that an application for a change of status or conditions may only be made in the republic if the applicant is a spouse or dependent child of a holder of a business or work visa , the provision provides that ;
Except in the case of medical treatment OR if the applicant is the spouse or dependent child of the holder of a business or work visa ,the holder of a port of entry visa, visitor’s visa and medical treatment visa may not apply for a change of conditions or status of an Existing visa ,unless he or she is in possession of a letter issued on behalf of the Minister of Home Affairs that good cause had been demonstrated for the submission of
Such an application
A new ground is introduced here, the one of good cause. We find the basis of good cause in section 31(2)(c) for the Act wherein an applicant can approach the Minister and request a waiver of certain prescribed requirements on good cause. No further direction is given on what is considered good cause but ultimately the provision provides the Minister with a wide discretion in make the assessment. In my experience the reasons must be very compelling before the waiver is granted and whilst certain constitutional imperatives may play a role in motivating one finds that these are rarely taken into account. It Is interesting to see what a High Court action would yield on this front.
The most profound and obvious omission to the exempt categories ,is the absence of the Spouse to an SA citizen and permanent resident and their dependents. The rights of families and the protection against enforced separation has long been considered an absolute right. In Dawood v the Minister of Home Affairs ((CCT35/99)  ZACC 8) , the constitution court in the landmark judgment found that any law that required spouses to be separated by requiring spouses of SA citizens to apply for their permit abroad was unconstitutional. The provisions we part of the Aliens control Act and were similar in effect to the ones we find in the current regime. To the extent that the law requires spouses and children of citizens and Permanent residents to apply abroad for any visa such law is in my view unconstitutional and reading the ratio of the Justices of the Con-Court one can’t help but agree. Perhaps being a spouse of a citizen or permanent resident or child constitutes good cause that the Minster will consider. As with a number of the provisions of the Immigration Laws very few have been put to the test and this is perhaps the reason why so much uncertainty surrounds them.
Before I conclude, I would just add a note on the issue around the Zimbabwe Dispensation Permit (ZSP). There is a lot of panic in the Zimbabwean community due to the seemingly stringent conditions attached to the ZSP permit. I have always maintained that the DZP was poorly regulated and very little direction was given from the outset, as a result people assumed it was a work permit. This is not the case, hence 5 years on the permit is not ground to found an application for Permanent residence. The conditions make that clearer.
The final issue causing a lot of stress is that the permit on its face prohibits a change of conditions, not status. As elaborated above the two are separate principles and as such what is prohibited is applying for a change of conditions under the ZSP from work to Business, but not from ZSP to General work visa or Critical Skill work Visa. If add a bit a law to this, the ZSP is issued in terms of section 31(2)(c). It is therefore an exemption granted under the Act and is a status as contemplated by the Act with conditions to either work, study or run a business. To prohibit a change of status form a ZSP would be contrary to the precepts of the Immigration Act and any action to that effect would be ultra vires the Act. It is neither a visitor’s visa nor a Medical treatment permit and as such there can be no legal basis to prohibit a change of status from the republic. It remains to be seen what the stance of Department will be, we can only confirm this on an application for a change of status from a ZSP, but form my stand point there is no lawful reason the believe that it is not possible.
In conclusion I will summarise the important bits,
- A change of status or conditions whilst in the republic is prohibited if you hold a visitor’s visa or medical treatment visa.
- Only a Spouse or child of a holder of a work or business visa can apply for a change of status from a visitors visa whilst in the republic.
- Is this unconstitutional or fair? Its unconstitutional, in my view, only to the extent that it differentiates between spouses and children of holders of work and business visas ,from, the rest of the visas holders and their families. It is also unconstitutional to the extent that it excludes spouses and children of citizens and Permanent residents.
- There is no lawful basis to deny a change of status from a ZSP permit, what is prohibited is a change of conditions. The golden rule is, as long as you meet the requirements of the visa you will be successful.
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