Divorce, the Foreign Spouse and Home Affairs

The expat’s right of residence in SA, based on the spousal relationship, is a very delicate creature. In terms of Home Affairs’ practice, as soon as the relationship ends, the temporary residence permit is deemed to end

Source: Chris Watters, Bedfordview

Those amongst us who studied Latin may recall the story that, many years ago, a young Trojan warned the elders of his community to be cautious about people who left gifts strewn around deserted Mediterranean beaches. Foreign nationals who are the spouses of South African citizens [or persons who have permanent residence] would do well to be guided by such advice. It’s not that Mediterranean nationals are to be avoided in spousal relationships but that the estranged South African spouse could well be bringing news that is every bit as tragic as the Trojan Horse turned out to be for some people in Troy.
In terms of the Immigration Act, the spouse of a SA citizen (which term includes a person who has obtained permanent residence in South Africa) qualifies to be granted temporary residence – and more particularly for a temporary relative’s permit. This category of temporary residence permits is usually issued for a year at a time and are subject to the spousal relationship surviving. If the foreign spouse wishes to be employed, the usual requirements for such authorisation – such as that the post has been duly advertised – fall away.
For purposes of the Immigration Act, the term “spouse” includes anyone who is in a bona fide, permanent, cohabitive relationship that is monogamous. To be a qualifying “spouse,” the expat does not need to be married to the SA partner. 
The only benefit or advantage that exists in being formally married – again, for purposes of the Immigration Act – is that it will often be easier to satisfy the Department of Home Affairs that such spousal relationship does in fact exist.
And if/when the relationship or marriage is five years old or more, the expat spouse also qualifies to apply for permanent residence. If permanent residence is granted, that status is granted on condition that the relationship must survive a further three years.
On the face of it, one can see why then some people, who want to settle in SA, will resort to all manner of devices to secure a spousal relationship.  
But the expat’s right of residence in SA, based on the spousal relationship, is a very delicate creature. In terms of Home Affairs’ practice, as soon as the relationship ends, the permit is deemed to end. And so it happens, not infrequently, that one of the first things the SA spouse will do once either party has walked out, is she or he will phone Home Affairs to report that the relationship has ended and to seek their support to have the expat spouse removed from South Africa. The Department’s officials tend to react to such advisories with alacrity which can lead to the expat spouse first being detained pending their deportation.
In the case of married couples, the fact that the marriage persists (for now) may be irrelevant. What matters is whether the couple are still living together in a bona fide relationship. So all too often, the expat can become liable to arrest, detention and eventual removal, according to the Department, long before the marriage is formally ended by divorce. 
A very sensitive problem that has not been addressed by the Immigration Act [and has not yet been considered by the courts] is what happens if the separation has been forced by an abusive SA spouse. This could leave the abused expat spouse facing the tragic dichotomy of either being removed from the country or being forced to return to the situation of abuse. And that vulnerability could as easily extend to the expat spouse fears attending custody or maintenance hearings to avoid arrest and detention by Home Affairs’ officials some of whom see it as their duty to support the SA spouse, right or wrong.    In one matter, the previous Minister of Home Affairs admitted that she saw this as her duty even though, in that matter, it was the expat spouse who ended up needing a protection order.   And it has also been argued in custody battles that the expat spouse should not get custody precisely because they are either vulnerable to removal and/or they no longer have a right of residence.
A further challenge for the Immigration Act arises when the couple disagree on whether the relationship has in fact ended irrespective of whether the couple are married or not. What is the status of the relationship, for purposes of immigration enforcement, if one of the parties sees the separation as being a trial separation or he or she is committed to trying to save the marriage through counselling or trying to mend the relationship themselves. In practice, officials of the Department of Home Affairs tend to react to the perspective or assessment of the SA spouse. As a long line of authority has held or implied that deportation requires that an official must take a decision to deport – which implies that there be some form of hearing to deport a person – the same ‘limitation’ applies to any decision to detain the expat spouse pending such deportation. 
The Immigration Act is however clear on one thing: in this context Home Affairs may only detain a person to establish either who he or she is and/or their residence status [which is limited to a 48-hour period], or in order to deport the expat who has no right to remain in the country.  
The Department does not have the authority to detain a person solely because he or she is in the country without a valid permit.   In addition, in Ulde v Minister of Home Affairs 2009(4) SA 522 (SCA) the SCA held, at paragraph [7], that the Department’s power to detain must be exercised “in favorem libertate.”
Another challenge for the Immigration Act and for estranged expat spouses, is what happens if children are involved – particularly if the child is a SA citizen. The child has a constitutional right to family life and to parental care – irrespective of its nationality. Whilst one would expect that the Department should be slow to remove the expat spouse [unless that was in the best interests of the child], there is the threat of removal that unfairly impacts on the expat spouse. 
The Immigration Act does not have a category of temporary residence permit that directly permits the expat spouse to be in the Republic to “accompany” his or her child or children. The closest the Act comes to achieving this is the relative’s permit. But this category of temporary residence permit is issued to “a foreigner who is a member of the immediate family of a citizen.”  It has been argued that it is straining the language of the Act considerably to hold that the child’s mother is a member of the child’s family. 
In addition, the Regulations to the Act require that to qualify for a relative’s permit, the SAC has to have disposable income of not less than R5000,00 per month to support the foreign relative! Whereas such prescribed requirements can be waived by the Department’s Head Office [which waivers rarely take less than six weeks to get, if approved] if there is “good cause”, section 18(2) of the Act says that “the holder of a relative’s permit may not conduct work.”  This requirement cannot be waived by the Department. This means that the expat spouse would be unable to provide for him- or herself and their dependants which must surely be unconstitutional.
This is not to say that the expat spouse is without remedies as he or she moves through the dissolution of a spousal relationship. There are protections but these are largely to be found rather in the Bill of Rights than in the Immigration Act – which Act badly needs to be amended in this regard. Perhaps the promised national debate on morality will also address the needs of the vulnerable expat spouse such that they can be protected against their Trojan Horses.

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