New immigration rules: What rights do foreign spouses have?

Cape Town – All eyes will turn to the Western Cape High Court on Wednesday when a Newlands family becomes the first to legally challenge the “unconstitutional” new immigration laws that have torn it apart. As lawyers fight the new rules, News24 looks at the options for foreigners affected.

What are the new rules?

In a bid to up the ante on security and protect borders, the government has clamped down on spousal or life-partner permits, which it believes are easily abused by undesirable immigrants.

The government now asks for couples to prove they have been in a relationship for at least two years, and also that spouses of work permit holders apply for certain visas abroad.

In the last few weeks lawyers and immigration experts have been lining up to protest against the new rules – arguing that the impact they have on personal relationships is unconstitutional.

What about those people still waiting for visas under the old rules?

A Home Affairs spokesperson said that for people who applied before the new rules came into operation, “the law does not apply retrospectively”.

This means that their applications still stand – and will not be subject to the new rules.

But Robbie Ragless, MD of New World Immigration estimates that “tens of thousands” of people have been waiting for months for visa renewals or replacements due to a massive backlog at the Home Affairs department.

And these people are being penalised if they try to leave the country.

What happens if people try to leave the country?

Under the old rules, foreigners waiting for their visas to be renewed could leave the country as long as they had a note from Home Affairs acknowledging receipt of their new visa application.

But under the new rules anyone that has overstayed their visa is prohibited from re-entering the country and branded as “undesirable”.

Previously, the undesirable list was reserved for those with criminal records and the like, but now the government has thrown “overstayers” into that list, regardless of their circumstances.

Those that have overstayed by between one and 30 days face a 12-month ban, while anyone who has overstayed by more than 30 days faces a ban of five years.

Is this fair?

Attorney Craig Smith doesn’t think so. He is representing Brent Johnson, from Newlands, in the Western Cape’s High Court on Wednesday – in the first challenge against the new laws.

Unaware of the new rules which were passed two days before their return from a family holiday to Namibia, Johnson’s family was devastated as his Danish-born wife Louise was banned from re-entering the country.

Though she applied to have her visa extended in February, it was still pending on her return to South Africa, prompting officials to put her on a one-way flight back to Copenhagen with her 2-year old son Samuel.

Smith is gearing up for a “big fight with the state attorney” and he thinks he has a “great case”.

What rights do people have?

Smith argues that it is a constitutional right for both South African citizens and foreign citizens to leave the country – yet the Home Affairs department is allowing airport officials to stamp passports “simply like machines” without considering their individual cases.

Meanwhile, there are reports of airport officials telling foreigners if they don’t want to be banned, they shouldn’t leave the country.

Smith said: “We can’t allow this to happen – it is making foreigners prisoners in South Africa”.

He added: “They are just imposing these draconian measures regardless of people’s circumstances. It is arbitrary, unconstitutional and unlawful.”

Indeed, Smith is one of many lawyers warning that the government faces litigation – while the Forum of Immigration Practitioners of South Africa (FIPSA) has warned that the government cannot impose on personal matters.

“That cannot be constitutional. The Constitutional Court says ‘you cannot deprive someone the right to live (however they want).We don’t want an environment of anarchy, we want a constitution in line with the international law,” FIPSA chairperson Gershon Mosiane said.

What can those affected do about it?

Experts are advising any foreigners still in the country with expired visas, awaiting renewals, to remain in South Africa – if they can.

Anyone with an expired visa who has to leave will face a ban as an “undesirable” – though the Home Affairs department said: “People are advised to visit our missions to raise specific issues where assistance may be required.”

There is however “some light at the end of the tunnel”, according to Ragless. He said there are already signs that the government has responded to the “loud noises” from prominent experts and individuals.

He pointed out that the Home Affairs department last week set up an appeals process that specifically asks for a copy of the note from Home Affairs acknowledging receipt of their new visa application.

Ragless said: “The mere fact that they’ve included that says to me one thing: that while Home Affairs doesn’t have the integrity to withdraw (the legislation) and admit defeat, they are willing to hear individual stories and lift bans.”

The appeals process also asks foreigners to keep hold of the “declaration of undesirability” that they are issued by immigration officials.

There is evidence that the government has already lifted “undesirable” bans – for example, British citizen Olivia Lock, 39, had her ban lifted after speaking out in the press.

Lock, who is married to South African Maurice van Heerden, was facing a 12-month ban from the country.

‘Toothless remedy’

Smith said that those branded “undesirable” should try and make use of the appeals process – though he warned it was a “toothless remedy”.

He said: “The question is whether it will go anywhere. It’s like going into battle with a peashooter – versus going to court, where they sit up and take note”.

Litigation however, is expensive, Smith acknowledged. Which is why the Johnson case will be keenly watched.

If they are successful it will set a legal precedent and the government could face a slew of challenges.

The prospect of that, Smith said, could be enough to force the government to “answer all this nonsense”.