What is the effect of divorce on a permanent resident permit?

A client asked: What is the effect of divorce on a permanent resident permit when a US citizen is married to a South African citizen and was granted permanent residency and a SA ID document on the basis of the marriage?

Permanent residence under the spousal category is issued in terms of section 26(b) of the Immigration Act of 2002:

“Subject to section 25 and prescribed requirements, the Director-General may issue a permanent residence permit to a foreigner who has been the spouse of a citizen or permanent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists:  Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;”

(My emphasis.)

This is read with regulation 23(6):

“A foreigner contemplated in section 26(b) of the Act who has been issued with a permanent residence permit shall, within the last six months of the second year following the issuing of that permit, avail himself or herself for an interview at any office of the Department.”

In practice however, there is no way to comply with this regulation – I have never heard of any Department of Home Affairs regional office that conducts these interviews.

Section 28(b) dealing with withdrawal of permanent residence:

“The Director-General may withdraw a permanent residence permit if its holder has failed to comply with the terms and conditions of his or her permit;”

In terms of section 26(b) there would be no impact on the permanent residence (and subsequent green ID) if the relationship ended more than two years after the permanent residence was issued.  If it ends within the two year period, either party could inform the Department of Home Affairs, but it is usually the South African citizen / initial permanent residence permit holder spouse that the application had been made under, who attends at a regional office to inform immigration inspectorate of the breakdown of the relationship on affidavit.

Inspectorate will then contact the foreign national to appear before them and the information will be forwarded to the office of the Director-General.  As it is at the Director-General’s discretion, there have been cases where the permanent residence was not withdrawn, despite the end of the relationship, e.g. if there are minor children who would benefit from having the foreign national parent to remain in the country.

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