The significance of the right to family life and the preservation of the family unit, integral to the right to dignity as outlined in the constitution, has once again emerged as a focal point, reshaping the landscape of immigration. In a recent ruling, the Constitutional Court in the case of Rayment and Others v Minister of Home Affairs and Others; Anderson and Others v Minister of Home Affairs and Others [2023] ZACC 40 declared sections 10(6), 11(6), and 18(1) as inconsistent with the Constitution. This legal challenge centered around individuals holding spouse visas, which were rendered invalid due to the termination of their respective relationships. Consequently, they were compelled to either apply for new visas in their home countries or seek an alternative visa, all while maintaining obligations to children born of these relationships.
In a comprehensive review of its past decisions, the court emphasized the paramount importance of family rights and the imperative to preserve family unity within immigration laws. The court made the following determinations:
- Section 10(6): The court found this section inconsistent with the constitution as it prevents parents of children who are citizens or permanent residents from pursuing exceptional circumstances that would allow them to change their status in the Republic.
- Section 11(6): Similarly, the court declared this section inconsistent with the constitution. It stipulates that a visa holder, who is a parent of a child that is a citizen or permanent resident, must cease working and leave the republic when the genuine spousal relationship ends, despite fulfilling parental obligations or demonstrating an intention to do so.
- Section 18(1): The court determined that this section is inconsistent with the constitution, as it restricts a foreigner eligible for a relatives visa, specifically a parent of a citizen or permanent resident child fulfilling responsibilities or intending to do so.
The implications of these rulings are profound:
- Individuals whose relationships have ended due to divorce or death, but who have children in the republic that are citizens or permanent residents, have a three-month window from the termination of the relationship to apply for a new visa. This visa can be a relatives visa, inclusive of the right to work.
- Furthermore, any person with a child in the republic, who is a citizen or permanent resident, can now apply for a relatives visa and be granted the right to work in support of the child.
These legal developments mark a significant step towards recognizing and protecting the rights of families within the immigration framework, ensuring a more compassionate and inclusive approach.