• Reconciling immigration law with the right of family life in South Africa

• State sanctioned human rights violations against the family unit in South Africa

• Counteracting marriage to a South African for the specific purpose of gaining legal status.

• Necessity of an effective deterrent
• Invoking a Limitation of the Bill of Rights clause

• Prevention of the limitation on entry into South Africa of a legitimate spouse of a South African citizen

• Prohibition on the non-national spouse to work and study

• African National Congress, Democratic Party and National Party standpoint on the Bill of Rights: Section 22.

• Proviso for legislation

• Failure of efficient public service and the effect on the survival of the family unit

• Limiting the negative consequences of Administrative delay

• Temporary residence permits

• Summary

The White Paper on International Migration indicates the implementation of a more lenient immigration policy towards the non-national spouse of a South African citizen or permanent resident. Notwithstanding such contention, Immigration Law will not stand the test of Constitutionality unless all relevant factors impacting negatively on the family unit are considered.

For the same reason why South Africa has a Constitution and a Bill of Rights, we need to briefly highlight the human rights abuse that has emanated from the Department of Home Affairs in enforcing the Aliens Control Act of 1991 (Amended in 1995).

Significant advances in the protection of the human rights of South African families affected by immigration law have been accomplished due to legal action against the State. Act 108 of 1996, The South African Constitution: Chapter 2 Bill of Rights, Rights 7(2) declares that the State must respect, protect, promote and fulfil the rights in the Bill of Rights. Contrary to such requirement, the South African government has vehemently opposed the application of human rights when dealing with a family unit where the spouse is a foreign national. Of significance is that the legal battle between the State and civil society over the recognition of family rights, the latter has achieved a position of higher moral ground. Consequently, we appeal to the Members of Parliament to consider the input from civil society, as it is we, the people, and not government that suffer the injustice resulting from flawed immigration legislation.

This subject is far broader than merely a question vis-à-vis immigration. It is a question of the inherent rights of the South African family and the sanctity of marriage. If the South African Government does not afford our family units full Constitutional protection, then the message is clear that no family in South Africa is secure from unwarrantable State intrusion.

• Historical Profile:- Imposing excessive financial limitations on the ability of the couple to live together as husband and wife.

• The non-national spouse is forced by law to apply for a permanent residence permit in order to live legally with their spouse. According to National Census statistics about 24 percent of economically active people in South Africa earn below R500 per month.

A solitary annual increase in the permanent residence fee in 1999 (from R7750 to R10020) was equivalent to an estimated 42% of the annual salary of such economic category. For many South African’s, family unity was impossible because of state imposed compulsory charges.

The South African state denied the:

• Right to Equality – Equal in status to family units in South Africa
• Right to Human Dignity – Destruction of legitimate family units by the state. (Dawood, Shalabi & Thomas v Dept Home Affairs)
• Right to Life – broad interpretation that includes economic survival.
• Right to Freedom and Security of the person
• Right to Privacy – State intrusion in privacy of family life.
• Right to Freedom of Religion, belief and opinion – Marriage consecrated according to religion – sanctity of married life disregarded by state. (What God has joined together, let no Home Affairs pull asunder.)
• Right of Freedom of Association – the right of husband and wife to be together.
• Right to Movement and Residence – giving the South African four choices: Stay in South Africa and comply to unjust laws, emigrate against one’s will, live apart in separate countries, divorce.)
• Right to Housing – Prohibition on non-national spouse to become economically active affects family’s ability to afford housing.
• Right of the Child – the state is bound by the Bill of Rights to consider the welfare of the Child to be of paramount importance – destruction of the family unit and forceful removal of a legitimate biological parent.
• Right to Education – linked to the Right to Dignity – advancement of the individual’s self-worth and enhancing the future prospects of a family unit and consequently the South African family component.
• Rights of Access to Information – Difficulty to obtain vital and accurate information from Home Affairs impacting human rights.
• Right to Just Administrative Action

Legal action has resulted in clarity of some of the above violations of human rights in favour of the litigants. Further legal action cannot be ruled out.

• The South African State has a duty to stop sham marriages. That right ends where the right of the family unit begins.

• The South African State is required by International Law to comply with the Universal Declaration of Human Rights:- Article 16: Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

• The State has a duty to protect South Africans, including the South African married to a non-national and children born of such union, against individuals attempting to abuse the system by entering into a fraudulent marriage.

• Protecting the rights of the South African spouse and children by the implementation of more lenient policy will fail unless an effective deterrent is provided.

• Should prima facia evidence exist that a fraudulent marriage has been entered into, the Service is required to criminally charge both the foreign applicant and the South African counterpart.
• Such legal action should not be subject to discretion, but should be compulsory.
• A legal agreement should be drawn up between the Service and the couple stating clearly the consequences of any illegal activity.

• Any South African having been found guilty in a Court of Law of having "abused their citizenship status" by means of a fraudulent marriage would be subject to a limitations clause.

• The limitations clause will affect the person’s freedom to marry or enter into a contractual relationship (union).

• Such affected party would need to apply to a Court of Law to have such limitation set aside in order for them to obtain recognition of their union by the State.

• The cost thereof would need to be born by the applicant.

• Spousal category applicants will be informed of such restrictions.

• Such limitation applies equally to permanent residents who abuse their status.

The legitimate spouse of a South African citizen must be guaranteed an entry permit into South Africa if no reason exists to classify such person as prohibited. Unfortunately, the current system of allowing discretion pertaining to the waiving of large financial guarantees and non-refundable return air tickets has been used to "punish" South Africans who have chosen a foreign spouse.

• Given the primacy of marriage and family life in a free and democratic society, no law or administrative rule, whether an immigration law or rule or otherwise, shall deprive a South African citizen of the right to be with their lawful spouse and children in the Republic of South Africa, nor infringe the fundamental right to family life, save for the commission of a serious non-political crime by the spouse or family member.

• The spouse of a permanent resident in South Africa, subject to an undertaking at the mission that permanent residence will be applied for, will be issued a temporary residence permit, unless subject to categories identified as prohibited persons, but excluding "citizens of certain foreign countries prescribed from time to time."

• A family unit in South Africa requires means to survive. In our opinion it is unconstitutional to prohibit the foreign spouse of a South African citizen from conducting any commercial activity, with or without remuneration. A prohibition on the earning capacity of a family unit may threaten the survival of what is defined in the Universal Declaration of Human Rights as the "fundamental group unit of society." If, for example, the South African spouse needs the assistance of his/her spouse to ensure the survival of a family business, it is unethical to prohibit such association.

• The prohibition to work and to study is a violation of the right to dignity – both activities are intertwined with the sense of self-worth. As South Africans who are married to non-nationals, we are witness to the effects of current inhumane immigration policy.

• Home Affairs has argued that it wants to protect the inherent rights of South African citizens and permanent residents insofar as job opportunities are concerned. Once again such contention is contrary to the Bill of Rights. Section 22 of the Bill of Rights guarantees opportunity to all South African citizens and its primary purpose is to prevent reservation of jobs for a particular class of people. Such a guarantee of freedom of opportunity does NOT afford the right that an occupation will be provided or that an occupation be kept open for him or her. While the freedom to guarantee opportunity for work does not apply to foreign citizens, it does not mean that such person be denied such opportunity if they fulfil certain requirements. It is our contention that a non-national spouse qualifies to be allowed access to equal opportunities due to the link with a family unit in South Africa that is afforded Constitutional protection.

The granting of permanent residence status is currently associated with the right to work. If non-national spouses are to be granted the same rights as South African citizens, excluding rights specifically reserved for citizens, Section 22 of the Bill of Rights needs to be considered. If our interpretation is correct, specific legislation needs to be enacted to give a permanent resident such right in terms of Section 22.

Jonathan Klaaren, Faculty of Law, University of the Witwatersrand; Department of Sociology, Yale University.)

• The Department of Home Affairs, Foreign Affairs, National Intelligence Agency, Police Criminal Records Department, etc. All have serious problems with administrative backlogs.

• We support Home Affairs in the granting of a permanent residence permit, subject to review after a period of three years.

• Death of South African partner is accommodated. Marriage ending because of legally proven abuse of foreign partner requires accommodation.

• The problem is the absence of a reasonable time frame for the necessary administration to be completed. At present spousal category permanent residence applicants have been waiting for nearly 6 months for the SA police clearance certificate, National Intelligence Agency report, confirmation from SA mission, and internal Home Affairs report.

• Couples have waited in excess of three and a half years for the granting of permanent residence placing a severe strain on the resources and capacity of many families.

• Should the South African spouse be incapacitated through illness, accident or be made redundant, the family unit loses their sole breadwinner. The prohibition on the foreign spouse awaiting permanent residence to work, results in a number of violations of the Bill of Rights due to the special relationship with the South African spouse and the children.

"The spousal applicant will be issued a temporary immigration permit exemption pending completion of administrative procedure, subject to the completion of an affidavit by both husband and wife that the documentation and application is not fraudulent."

Alternatively,

"The spousal applicant will be issued a spousal temporary category work permit within 30 days of application pending completion of administrative procedure, subject to the completion of an affidavit by both husband and wife that the documentation and application is not fraudulent."

Such temporary work permit will remain valid until the non-national spouse has been granted permanent residence or found guilty by a court of law of having entered into a fraudulent marriage for the purposes of gaining entry into South Africa.

Furthermore, on the basis that the permanent spousal residence permit application fee levied is just and reasonable, no additional charge should be levied for a spousal temporary category work permit.

• The ruling of the Constitutional Court allows permanent residence status for same-sex couples.

• Heterosexual couples currently enjoy such right only if they are legally married.

• Based on the inequity of such arrangement, we propose a visa category for the fiancée of a South African citizen or permanent resident, valid for a period of no less than 12 months.

• Conversion of any existing visa into a spousal or fiancée visa should be permitted, such extension being an exception to the individual conditions of the specific visa.

• In the case of a fiancée, such person does not qualify within the definition of a spouse or family member and consequently is not entitled to work or to receive preferential treatment.

Members of Parliament are requested to:

• Adhere to their Constitutional oath / sworn affirmation to uphold the Constitution.

• To respect, protect, promote and fulfil the rights affecting family life in South Africa in accordance with the Bill of Rights.

• Recognise that the integrity of the family unit in South Africa is closely associated with one of the most important rights in the Bill of Rights: The Right to Dignity.

• Ensure legislation that allows for the proper, uninterrupted maintenance of family life.

• To protect the Rights of the Child

• To support the advancement of Women’s Rights

• Introduce mechanisms to prevent abuse of the immigration system by effectively targeting the transgressor and not innocent families.

• Recognise the practical limitations of Government service delivery and legislate to accommodate family units to prevent discrimination.

• Ensure that legislation is enacted to counteract the general provision of the Bill of Rights: Section 22.

• Facilitate entry into South Africa of a spouse of a South African citizen or permanent resident.

• Lifting the prohibition on work related activity or study on a spouse of a South African or permanent resident.

• Accommodate the fiancée of a South African citizen or permanent resident.