What options are there for the foreign national in a relationship with a South African?
Not a week goes by without my office getting an inquiry from a South African who is at his (or her) wit’s end because their foreign partner or spouse, either does not have a permit or is travelling in and out of the country every few months (or less) in order to stay legal – and they don’t know what to do.
It surprises many to find out that actually, South Africa (currently anyway) has a very accommodating and liberal attitude towards foreigners who wish to stay in South Africa because they have a partner or spouse who is South African – for the most part, anyway.
Before I deal with this, I need to do the usual ‘lawyer’ thing and deal with definitions – what does the Immigration Act mean when it talks about a “spouse”, what qualifies as a “relationship”, etc:
A person who is in a qualifying spousal relationship with a South African and who wishes to stay in South Africa with their SA spouse, is entitled to apply for what is commonly termed a “spousal visa” which is issued in terms of section 11|(6) of the Act.
The spousal visa is usually issued for two (2) years at a time and can be extended – so long as the relationship still exists.
The spousal visa is issued in terms of section 11(6) of the Act. This is also the visa to be applied for if the foreign spouse needs or wishes to take up employment – and has been offered employment. As part of the application, the Department of Home Affairs will want to see that offer in writing. The would-be employer does not have to have advertise the post and the spouse does not need to have any special skills. The offer of employment can be to wait on tables at a coffee shop or pizzeria, if needs be. This is also the visa to apply for if the spouse wishes to be self-employed. The visa that is then issued is worded to the effect that the visa holder is given permission to “accompany SAC spouse ID no …. and to be employed by [ABC (Pty) Ltd)]”.
There are two ‘tricky’ aspects to this visa:
In the event of a divorce (or in the run up to a divorce), the foreign spouse is not necessarily left “stranded”.
What the options are (for either spouse) – if there are any options at all – will depend on the facts of each case. It would be misleading to attempt to summarise the possible options and scenarios in this article. Persons finding themselves in such a dilemma are instead advised to seek legal counsel from someone well-versed in immigration law.
By way of a concluding note, once a spousal relationship is five years old, the foreign spouse qualifies to apply for permanent residence. But note that in terms of Department practice, if the couple (not being married) marry during that five-year window or once the application is submitted, the ‘clock is reset’ and the couple have to be “married” for five years before the application for permanent residence can made (again).
CHRIS WATTERS ATTORNEYS
© chris watters 2016
Bregman Moodley Attorneys Inc. 2015/089214/21
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