[South Africa] Loss of status for foreign spouses with a South African child declared unconstitutional

South Africa’s Constitutional Court has ruled that it is unconstitutional for the Immigration Act to force a foreign spouse or unmarried partner to leave the country in the case of divorce or separation from their South African spouse if there is a South African citizen or permanent resident child with the spouse, Fragomen reports.

As an alternative, the court has created a provision to allow a change of status (in the case of a Visitor’s Visa holder) within three months from divorce or separation with the South African spouse, letting the foreign spouse or unmarried partner become eligible to apply for work authorisation or continue working for the full duration of the work permit to take care of the child financially. 

Before this, a foreign spouse or unmarried partner would have needed to stop working and depart the country to apply for a new visa or work permit in their country of residence or origin. The Constitutional Court has granted Parliament or the Department of Home Affairs 24 months from the date of the judgement to challenge the provisions, including the three months for status change. 

Failure to do so will reportedly result in these provisions becoming permanent.

Source: Fragomen

South Africa’s Constitutional Court has ruled that it is unconstitutional for the Immigration Act to force a foreign spouse or unmarried partner to leave the country in the case of divorce or separation from their South African spouse if there is a South African citizen or permanent resident child with the spouse, Fragomen reports.

As an alternative, the court has created a provision to allow a change of status (in the case of a Visitor’s Visa holder) within three months from divorce or separation with the South African spouse, letting the foreign spouse or unmarried partner become eligible to apply for work authorisation or continue working for the full duration of the work permit to take care of the child financially. 

Before this, a foreign spouse or unmarried partner would have needed to stop working and depart the country to apply for a new visa or work permit in their country of residence or origin. The Constitutional Court has granted Parliament or the Department of Home Affairs 24 months from the date of the judgement to challenge the provisions, including the three months for status change. 

Failure to do so will reportedly result in these provisions becoming permanent.

Source: Fragomen