Impact of New Immigration Rules for returning South Africans

Returning South Africans
Returning South Africans

For returning South Africans the rules have not changed. It remains your absolute right to return to South Africa. Of course please ensure you continue to meet your obligations with regards to dual citizenship and travelling on your South African passport.

The changes do however have an impact on homecomers who wish to bring their foreign spouse or life partner with them.

Homecomers with foreign spouses or life partners

What visa options are available?

In a somewhat cosmetic change, you will notice that we now refer to what was a permit as a visa. The fact remains however, that the two previous permit options of a spousal or life partner permit, remain albeit they are now called Spousal Visa and Life Partner Visa.

Spouse is someone in a permanent relationship who is married or in a civil union. Life partner is someone in a permanent relationship but not married or in a civil union.

How do you qualify for a temporary residency spousal visa?

The new rules are seeing different interpretations of how to qualify for a spousal visa. We have sought clarification from the Department of Home Affairs and await their reply.

Our current view is that the Immigration Act of 2002 states if a foreigner is married to a South African then they have the right to apply for a spousal permit which can be endorsed to work, study or start your own business.

The new regulations of 2014 seem to contradict this as it implies the couple need to be married for a period of 2 years, or have proof they have been in a shared financial relationship and lived together for a 2 year period.

We base our view on the fact the Act states that when producing marriage documentation (as defined in the Act), no duration of marriage is noted and the period of marriage is therefore irrelevant to Spousal eligibility.

As said, we feel the need to address this difference of opinion with the DHA as it is not clearly defined.

We therefore ask all those interested in a spousal visa first contact us so we may review your individual circumstances.

How do you qualify for temporary residency life partner visa?

Thankfully there has been some relaxation of the brutal 5 year relationship requirement (as proposed in the February rules) and this has been amended to a less onerous 2 years.

It is therefore now a requirement that the relationship between a South African Citizen or Permanent Residence holder and a Foreign partner must have existed for 2 years before an application for this visa may be made. Interviews with both the applicant and the South African will be conducted individually and at the same time to also substantiate the claim as well as the required documentary evidence.

It is also important to note that two years after being issued the Life Partner Visa, a visit to the DHA is required in order to prove that the relationship still exists and maintain the validity of the permit granted.

How do you qualify for a permanent residency spousal visa?

We can see no amendment to the 2011 Act which states that spouses have to be in a relationship for 5
years. Opinion here does differ as the as the regulations indicate that this may be possible after 2 years.
How do you qualify for a permanent residency life partner visa?

Once again opinion differs with the interpretation of this part of the new Act, whereby it appears that a Life Partner can also apply for Permanent Residence at the same time as applying for Temporary Residence if they meet the 2 year criteria.

However when referring back to the original immigration Act of 2002, and the lack of change in the 2011 Amendment Act, we are of the belief that permanent residence can only be applied for after 5 years.

Conclusions

The most obvious conclusion is that there remains ambiguity between the various Acts and the new regulations. This ambiguity is around the time frames for permanent residency for both temporary and life partner.

Caution should be taken if applying for Permanent Residence before you have proof of 5 years. Applications may be taken in by the Department of Home Affairs and then be rejected 1-2 years later based on current processing times within South Africa.

The other area of ambiguity is the time frame for spousal visas – temporary. What is for certain is if you can prove your relationship for 2 years you will be fine. What is uncertain is whether applications for shorter periods of the relationship existing will be allowed.

Our opinion is currently based on our interpretation of the Act and regulations. Unfortunately at this stage clarity on the regulations is imprecise and only time will unveil the precision required.

How do I find out more?
If you are unsure how this effects your situation please either call us on + 27 (0) 11 234 4275 or you can email us here.