A foreign ‘spouse’ as defined in our immigration laws which relates to a married ‘spouse’ or one in a permanent partnership with a South African Citizen or Permanent residence would qualify for a visa to remain in South Africa, and more importantly, work, run an own business, study or even volunteer with such a visa?
How is ‘Spouse” defined in our immigration laws?
The Immigration Act 13 of 2002, as amended, specifically defines a ‘spouse’ that envisages two diverse scenarios: firstly, either as “any person who is party to a marriage or customary union”; or someone who is in a “permanent homosexual or heterosexual relationship” as set out in our immigration regulations.
What is important to appreciate is that foreign ‘spouse’ would be eligible for a spouse visa if he or she is married to a South African resident or citizen regardless of how long the marriage exists. In fact, the marital partners could get married in South Africa and follow that up in South Africa with a change in status to a spouse visa. The application of the law, in fact, was changed via our Constitution to allow foreigners on a visitor’s visa to change to a spouse or relative’s visa.
If, however, the parties are not married and are permanent partners, they will need to comply with regulation 3 of the 2014 immigration regulations. Most significantly, the parties to the partnership would need to show a history of financial sharing of resources in relation to one another for at least two years to justify the fact that the relationship exists in accordance with the said regulation.
Legal Immigration Services are highly skilled in consulting and advising on such spouse visas and assist in bringing success in collating the necessary independent evidence to show that the foreign ‘spouse’ is in fact in a permanent relationship of good faith with his or her South African spouse.
Unpacking Terminology – Distinction between a Relatives or Spouse Visa with Endorsement?
The phrase “spouse visa’ is often used loosely when in fact it may have different application to what is intended and therefore important to appreciate the subtle yet significant differences between the two categories of spouse visas.
In terms of basic immigration terminology, we hear reference to “spouse”, “spousal”, life-partner” and finally “relatives” visas to mean a foreign spouse who is in a relationship with a South African Citizen or Permanent residence holder. But there is something more material to this.
There are two distinct foreign ‘spouse’ related visas who seek to remain with his or her South African partner. Firstly, there is the Relatives Visa in terms of section 18 of the Immigration Act 13 of 2002, as amended, and secondly, there is the Spouse Visa in terms of section 11(6) of the said Act.
A Relative’s Visa is purely based on “spouses”, as defined, namely, married or in permanent partnerships to remain with each other where the foreign ‘spouse’ has no aspiration to work or perform any other activity save for being with the South African partner.
A “Spouse Visa” is typically considered to be a section 11(6) visa which is issued under the Visitor’s Section whereby the foreign spouse, married or in a permanent partnership, will remain with his or her spouse but in addition elect to either take up employment, conduct own business, volunteer and study whilst remaining with his or her South African spouse.
Long-term “spouses” as defined and Permanent Residence after 5 years
In terms of the spouse category in terms of section 26(b) of the Immigration Act 13 of 2002, as amended, a foreign ‘spouse’ would qualify for permanent residence as spouses, namely, through marital or permanent partners in excess of five years.
It is to be noted that permanent residence under the spouse category could be achieved by a combination of being marital and permanent partners.
What is essential for permanent partners is to understand what the evidence entail to suitably prove the existence of a permanent partnership under regulation 3 of the 2014 immigration regulations.
What is Independent Evidence?
Over and above a notarial agreement and DHA Forms to affirm the duration of the relationship, the independence evidence will include:
- Lease Agreement with both parties or Joint Ownership of Property or Utility Bill plus evidence of accommodation by other spouse whether from abroad or in South Africa
- Signed Power of Attorney by both spouses on Banking Facilities from one spouse in favour of other
- Joint Purchase of Property or any other assets
- Evidence of Joint Medical Aid whether in South African or abroad or both and or Life Insurance Policies
- Copies of receipt of invoices in favour of both spouses on same documents address where residing together
- Joint property insurance if applicable
- Any evidence of permanent relationship documentation specifically to show common law partners
Can a divorce or separation of the parties affect the visa or permanent residence on spouse category?
It does not matter whether the spouse visa or permanent residence is based on being marital or permanent partners when it comes to the determination of whether the relationship is no longer in good faith.
As soon as the objective evidence reveals that the parties no longer live together it can become an issue especially when the DHA becomes aware of this fact. DHA may even attempt to visit the common home to check the good faith element.
If the DHA are not satisfied they will assert rights in terms of section 43 of the Immigration Act 13 of 2002, as amended, and claim the foreign spouse is in breach of the visa or permanent residence permit and in that case you become illegal and the legal consequences would follow.
We would recommend that you contact Legal Immigration Services when a decision is made to terminate your relationship where one spouse chooses to move out of the common home. Be aware of the fact that what can happen is the South African spouse can potentially approach the DHA and report the separation and this would be catastrophic especially when the risk of deportation is at stake.
What is essential then is that such foreign spouse consider the decision to change of status to another visa category before it becomes too late. Remember, a foreign spouse can change status in South Africa and so it does not mean that such foreign spouse is obliged to leave the country and apply abroad for a new visa.
RICHARD EIBERG – LEGAL IMMIGRATION SERVICES SOUTH AFRICA