South Africa: Court Declares Loss of Status for Foreign Spouses with a South African Child Unconstitutional

The Constitutional Court has ruled that it is unconstitutional for the Immigration Act to force a foreign spouse or unmarried partner to leave South Africa in the case of divorce or separation with their South African spouse if there is a South African citizen or permanent resident child with the spouse. The court has instead 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, so the foreign spouse or unmarried partner can become eligible to apply for work authorization or continue working for the full duration of the work permit to take care of the child financially. Previously, a foreign spouse or unmarried partner would have needed to stop working and must have departed 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-month period for status change. Failure to do so will result in these provisions becoming permanent.