Source: Chris Watters
CHRIS WATTERS ATTORNEYS
© chris waters
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:
1. When we talk about “South Africans” in this context, the term includes both SA citizens and those persons who have been granted permanent residence in SA.
2. To be the “spouse” of a South African for purposes of this country’s immigration laws and residing in SA, you do not need to be married.
3. The term “spouse” includes persons who are genuinely “living together” and those who are married or in civil unions.
4. The term “spouse” includes persons in same-sex and heterosexual relationships.
5. The term “spouse” excludes persons who in a relationship which is potentially polygamous except for those in marriages which have been registered as “customary unions”. So where either or both parties to the relationship were previously married but are not divorced, such a “spousal relationship” is deemed to be polygamous and the foreign spouse does not qualify for the dispensation spelt out below.
6. If you are the fiancé of a South African (whether formally or informally) but you are not in a “spousal relationship which is intended to be permanent”, you do not qualify to be a “spouse” for purposes of the Immigration Act.
7. If you marry a SA citizen in order to qualify for residence rights in SA, this is referred to as a “marriage of convenience” and is double jeopardy. Not only do you not qualify for a permit (and if you do get a permit based on the relationship and the status of the marriage is discovered, your permit will be withdrawn) but, at the same time, you do remain married.
8. A person who is the “spouse” of a South African is defined to be a “relative” of the South African, although that may sound confusing.
9. There is no definition of how old a spousal relationship must be as a minimum. You could have met on the plane flying in from London and have realised that you are soul mates, made for life. The problem will be to prove this to Home Affairs.
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 one of two categories of temporary residence permits.
Both categories of permits are usually issued for two (2) years at a time and can be extended – so long as the relationship still exists.
The first permit is referred to as a relative’s permit (because of that definition of “spouse”) and is issued in terms of section 18 of the Immigration Act. This is the permit to be applied for by the spouse who is coming to SA (or is already in SA) and plans to ‘stay at home’ and not work. The permit that is issued is worded to the effect that the permit holder is given permission to“accompany SAC spouse ID no ….”.
The alternative, is a permit that is issued in terms of section 11(6) of the Immigration Act. This is the permit 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 advertised 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 permit to apply for if the spouse wishes to be self-employed. The permit that is then issued is worded to the effect that the permit holder is given permission to “accompany SAC spouse ID no …. and to be employed by [ABC (Pty) Ltd)]”.
There are two ‘tricky’ aspects to both of these permits:
1. How does one prove that you are in a spousal relationship that is intended to be permanent? Well, the answer is easy if you are married or in a civil union – your certificate does the job. But if you are not married and are instead “life partners” or living together (if those terms mean something different) – what then. The Regulations to the Act call for proof in the form of utility accounts, leases and other such evidence of a joint home and relationship. In practice, the Department will rather look for what is called a Deed of Cohabitation. This is an agreement between the unmarried couple setting out, principally, how their mutual financial affairs are to be dealt with.
2. Whether you have a relative’s permit or a section 11(6) permit, your permit and status are only as good as is your relationship. In terms of Department practice, as soon as one partner walks out, the permit is deemed to have lapsed and the foreign spouse is at risk of removal. It does not take an astronaut to work out that this can lead to massive abuse – as does happen.
What is said above, does not apply to couples where both parties in the relationship are foreign nationals (unless one is also a permanent resident – as is dealt with in our explanation of the definitions). This special dispensation applies only to a foreign national who is the spouse of a South African (as defined above).
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 marry either 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).