Rules for Changing Foreign Spouses’ and Children's Status Relaxed

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At a Glance

• Following a Constitutional Court decision, the Department of Home Affairs in South Africa has issued a new directive that allows foreign spouses and children of South African citizens and permanent residents to change their immigration status without leaving South Africa and without a special government waiver, which took up to eight weeks to issue.
• This should save time and costs associated with these processes.

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The situation

A court decision in South Africa indicates that it is unconstitutional for foreign spouses and children of South African citizens and permanent residents to be denied the opportunity to change their immigration status in South Africa. As a result, the Department of Home Affairs issued a directive to amend the requirement.

A closer look

Foreign nationals and children of South African citizens and permanent residents residing in South Africa no longer need to apply for a special government waiver, nor must they exit South Africa to change their immigration status.

Impact

South African citizens and permanent residents with foreign children or spouses will save costs and time when seeking to change their children’s or spouse’s immigration status. The waiver previously took up to eight weeks to issue and cost ZAR 1,350 (1 ZAR = 14.07 USD).

Background

While it is unusual for the South African Constitutional Court to rule on matters that affect immigration, this case affects immigration policy since the court found that the requirement for a foreign spouse or child to leave South Africa to change their immigration status limits their constitutional right to dignity and is not in the best interest of children.

Looking ahead

Fragomen does not expect the Constitutional Court to play a growing role in immigration policy, aside from where it affects constitutional rights on an ad hoc basis.

The immigration regulation as it appears in the government gazette will be amended to accommodate the ruling within 24 months, as instructed by the decision.

Other changes in immigration regulations in South Africa are expected when the new Minister of Home Affairs updates his budget, which is expected to occur later this year.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].