Change of Status & Conditions Clarified.


On the 29th of January  2016 the High Court of South Africa`s Western Cape Division handed  down a judgement that has  clarified an issue that has  been  the cause of  much confusion  in SA Immigration and in the process opening the  door  for  many foreigners wishing to change apply for a spouse visa without needing to go back to their countries of origin to apply for the Visa.    The case of Stewart v Minister Of Home Affairs ( case 12520/2015) also opened the door for other  applications  to be submitted in the country without the need for the applicants to first go  back to their country  of origin by clarifying the question around Change of Status and Conditions from a Visitors Visa. We explore these  issues in this article  and  shed  light on this controversial issue.

The  Issues in Court 

The case  was  brought to court  by the Stewart family  on the 4th of November 2014 challenging the decision of the Department of Home Affairs to reject  Mrs Stewart`s application for a Spouse Visa  on the grounds that she had applied for a change of status from visitors visa, something that is expressly prohibited by the Act in section 10(6).  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.  

The Second challenge was that section 10(6) and 10(6)(b) were unconstitutional to  the extent that the required  Spouses to be separated form the families whilst they return to their countries of origin to apply for a spouse visa.  This challenge was supported by the decision of the Constitutional Court in Dawood v the Minister of Home Affairs 2000 (3) SA 936 (CC).

In deciding for the applicants the  court found that  when reference is made to ‘Spouse visa”  in the Immigration Act , it is made in terms of section11(6)  not section 18 relatives category.  The court pointed out that ” What is meant  by the general term when the Immigration Act is accurately applied  is a visitors visa contemplated in section 11(6) of The Act ”  , and not  a section 18.  The court drew from the provisions  of section 27(g) which makes reference to a member of the immediate family and the two distinct definitions of Spouse and Relative  in section 1 .   The court  then looked at the provisions of section 10(6)(b) and found that what is prohibited by the section is a change of  status alone and not a change of conditions. The court then went  on to state  that the  application from a  visitors visa or tourist visa was  a change of conditions and therefore allowed by the Act.  Counsel  for the Department  also  conceded this fact and the court  granted the relief  for the applicant ordering that the spouse visa be issued  to Mrs Stewart.

Effect of the Decision 

So what does this mean for everyone else?

1. A spouse visa with  or without  an endorsement  is couched under Section11(6)  only  and not section 18. The confusion created in practice was the cause of much debate. The accepted practice was that the a spouse who is not applying for any additional endorsement  had to apply for a relatives visa.  This was obviously absurd as as spouse is not a kin and did not  meet  the  definition of kinship.

2. A spouse to a citizen or permanent resident  must therefore apply for the  a visitors visa in terms of section 11(6) of the Act. The application can be applied for  in South Africa without the need  to leave the country and apply from the applicant country of origin. This means that every sposue in SA who has been  unable to lodge an application due to the fact that he or she entered the country  on a visitors  visa may now  apply for a change of conditions  from a visitors 11(1) to a Visitors 11(6).

3.  The other  most significant  impact of this decision is that the financial assurance requirement falls away . Section 11(6) read with regulation 3  contains no financial assurance requirement.  Financial assurance is only a requirement under Section 18 and is not found under section 11(6). The will give much relief to applicants who wanted to apply for a spouse visa to join their spouses in SA  but because their South African Spouses did not earn the required R8500.00 they did not qualify for  the Visa.

4. The other significant  effect of this decision is that ever other visa under section 11 is  subject to the same principle. Section 11  has 12  visa sub categories that a person can apply for and  now they can lodge the application in South Africa without  needing to go back to the  country of origin.

Concluding Remarks 

As with everything in South Africa and immigration , it remains to be seen if Home Affairs will concede the point and allow  applications  to be submitted as directed by the court. There is no question of a precedent  being set in this matter as the Act is already clear on what the requirements and  process should be.  Applications  for a change of conditions  of a visitors visa  are allowed  by law and VFS and DHA  should consider these applications accordingly.

by  Munyaradzi Nkomo

Managing Director and Immigration Specialist at Strategies Migration Services South Africa.

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