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28. May. 2024 SA MIGRATION ,NANDUTU AND OTHERS V MINISTER OF HOME AFFAIRS

Change of status from Visitor’s Visa now allowed for spouses and children of South African citizens and permanent residents meaning you can from a tourist visa to spouse or relatives visa




Spouses and children of South African (SA) citizens and permanent residents were prohibited from changing their Visitor’s Visas, used to enter South Africa, to other types of longer term visas, for example relative’s visas, study visas and work visas. These applicants had to travel abroad (to their home countries, although they perceived SA as their home country) file the required longer term visa application at the South African Mission, obtain the visa and then return to South Africa. This meant in practice that families were torn apart, the spouses’ right to cohabitation and children’s rights to dignity were infringed whilst the visa formalities had to be met.
Regulation 9(9)(a) of the Immigration Act, that imposed the restriction of change of status from a Visitor’s Visa to a longer term visa on spouses and children of SA citizens and permanent residents was however not applicable to the spouses and children when the applicant was an accompanying spouse or child of a holder of a business or work visa, who wishes to apply for a study or work visa. This meant that spouses and children of foreign nationals holding a business or work visa had more rights, in terms of the Immigration Act and Regulations, than the spouses and children of SA citizens and permanent residents.
This restriction imposed by Regulation 9(9)(a) on spouses and children of SA citizens and permanent residents was surely not what the legislature had in mind when the Immigration Regulations were drafted, but same was still imposed and this lead to much heartache and wasted expenditure where spouses and children had to travel abroad to submit their visa applications.
On 28 June 2019, the Constitutional Court handed down judgment in a case where applicants sought to have Regulation 9(9)(a) of the Immigration Regulations declared unconstitutional on the basis that it limits the constitutional right to dignity by limiting the rights of persons to marry and cohabit, and the best interests of children by limiting their rights to family care.
The applicants argued that the lack of an exception that catered for holders of visitors’ visas who are spouses or children of South African citizens or permanent residents limited their constitutional right to dignity.
BACKGROUND FACTS TO THIS COURT CHALLENGE: NANDUTU AND OTHERS V MINISTER OF HOME AFFAIRS AND OTHERS [2019] ZACC 24
This matter involved two different family units, each of which comprises a foreign spouse who is married or life partner of a South African citizen or permanent resident.
In each of these family units the spouse of the SA citizen or permanent resident was in possession of a Visitor’s Visa and wanted to apply for a longer term visa whilst in South Africa, there applications for longer term visas could not even be accommodated under exceptions that make it possible for certain Visitor’s visa holders to apply for a change in visa status from within South Africa.
That was because the exceptions did not cover their situation. The exceptions which allows for exceptional circumstances to change a Visitor’s visa to another type of visa are contained in Regulation 9(9)(a) of the Immigration Regulations.
The main issue before the Constitutional Court was whether Regulation 9(9)(a) is constitutionally invalid to the extent that it does not extend “exceptional circumstances” to include “where the applicant is a foreign spouse or child of a South African citizen or permanent resident”.
THE CONSTITUTIONAL COURT RULING AND THE IMPACT OF THE RULING:
The majority judgment declared Regulation 9(9)(a) invalid and inconsistent with the Constitution, in that it unjustifiably limits the constitutional right to dignity and the right that a child’s best interests are paramount in every matter concerning the child.
Relying on the Dawood case (Dawood v Minister of Home Affairs), the majority jsutices in this matter concluded that Regulation 9(9)(a) limited the right to dignity and right that a child’s best interests are paramount in every matter concerning the child.
Accordingly, the majority justices declared Regulation 9(9)(a) constitutionally invalid, suspended the declaration of invalidity for 24 months and ordered a reading-in on an interim basis of words that have the effect of adding to the exceptions under the regulation spouses or children of South African citizens or permanent residents, the following sub-section was therefore added to Regulation 9(9)(a):
‘(iii) is the spouse or child of a South African citizen or permanent resident.’
WAY FORWARD FOR SPOUSES AND CHILDREN OF SA CITIZENS AND PERMANENT RESIDENTS:
The effect of this ruling and the addition of a reading-in to Regulation 9(9)(a) is that spouses and children of South African citizens or permanent residents would not have to depart from South Africa in future when applying for a change in Visitor’s visa status. The change of status applications can therefore be submitted at VFS offices located in South Africa.
Spouses (including qualifying life partners) and children of SA citizens and permanent residents may now opt to travel to South Africa with their visa exemptions that may be valid for up to 90 days (where applicable) and apply in South Africa for a longer term work or study visa.
Regulation 9(9)(a) does not stipulate an exception for change of condition applications from Visitor’s visa to Relative visa, it will therefore be interesting to see whether the Department of Home Affairs will interpret the Constitutional Court ruling correctly or if it will take another court challenge to convince the Department. The constitutional right to dignity and rights of persons to marry and cohabit, and the best interests of children are paramount and should be protected at all times



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13. Jun. 2024 IOL

Namibia demands reciprocal visas for their nationals

Nationals from thirty one countries will need to complete an online application form and obtain visas-on-arrival. Namibia`s Ministry of Home Affairs, Immigration, Safety and Security (MHAISS) has declared that thirty one countries, mainly from Europe, will be removed from its visa-exempt list due to the lack of reciprocal visa arrangements for Namibian citizens. While the implementation date is yet to be determined, nationals from these countries will need to complete an online application form and obtain visas-on-arrival, as stated by MHAISS. V.5428

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11. Jun. 2024 IOL

Border management dispels rumours claiming that there are flight delays at OR Tambo Airport

The Border Management Authority (BMA) has dismissed reports claiming that a transition to a biometric system at OR Tambo International Airport is causing delays for all international departures and arrivals. Commissioner at BMA, Dr Michael Masiapato said the false reports have caused unnecessary concern among travellers and stakeholders. V.5427

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10. Jun. 2024 Times Lives

Home affairs grapples with authenticity of relationships

The department needs to establish authenticity before granting spousal or relative visas A major headache for the department of home affairs in processing temporary residence visas is having to establish the authenticity of relationships claimed between individuals. V.5421

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10. Jun. 2024 Visa News

5 South African Countries Announce Plans to Introduce Single Visa to Promote Tourism

Key Takeaways • Angola, Botswana, Namibia, Zambia, and Zimbabwe are planning to introduce a single tourist visa. • This visa, similar to the Schengen one, will permit entry to all these five countries for a short period. • GCC countries will soon also launch a single visa. Angola, Botswana, Namibia, Zambia, and Zimbabwe have announced plans to simplify the movement of foreign travelers within their territories without the need to apply for separate documents. V.5422

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10. Jun. 2024 The South African

There’s a huge VISA backlog at home affairs that’s stifling SA

It’s ironic that with so many South Africans trying to leave the country, it’s a visa backlog for people trying to get INTO the country that’s stifling economic growth. According to a report from Business Tech, the Department of Home Affairs (DHA) has a visa backlog of 62 000 applications. These are for people and workers trying to get into the country to fill critical skills shortages. Now, visa agent Xpat, says the DHA are rejecting applications out of hand to simply try clear the huge visa backlog. The agent specialises in work permits for people coming to South Africa. It says individuals, HR professionals and businesses face lengthy delays and a needlessly complex application process WHAT’S THE REASON FOR THE VISA BACKLOG? Since COVID, there have been a number of changes to rectify problems within the DHA. And Xpatweb believes these administrative processes have led to mounting rejections for frivolous reasons. V.5423

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10. Jun. 2024 News24

`Habibi, come to South Africa!`: Dubai Bling`s Ebraheem confirms Forever Rose coming to SA

• Ebraheem Al Samadi, celebrated for his role on Dubai Bling, chose South Africa as his exquisite holiday destination. • He praised the country`s stunning landscapes, rich history, and the warmth of its people, declaring it an ideal vacation destination. • Al Samadi revealed plans to expand his Forever Rose café franchise to South Africa and teases what he describes as the ultimate season of Dubai Bling. `My name is Ebraheem, and this is my tongue. Beware!` The Blooming Man says in Netflix`s Dubai Bling, an iconic line that cements his place as `the son of a king, and the son of a queen`. V.5424

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10. Jun. 2024 The Guardian

High court rules Home Office acted unlawfully over visa documents

Home Office failed to provide digital proof of status to those applying for visa extensions, in new Windrush-style scandal The Home Office is facing a new Windrush-style scandal after a landmark high court ruling found that the home secretary acted unlawfully by failing to provide documents to thousands of migrants proving they are here legally. The charity Ramfel brought the legal challenge along with Cecilia Adjei, a healthcare worker and mother of two boys aged 17 and 11, who came to Britain from Ghana in 2000. V.5425

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10. Jun. 2024 City Press

SA`s population is getting older: `New report offers government blueprint for future planning`

Expert says the new report gives government an opportunity to plan ahead to meet the country’s needs. The South African population has grown by 1.1% in the past year to about 63.1 million. Of this number, 51.6 million are black Africans, followed by coloured people and the white population projected at about 5 175 608 and 4 607 554, respectively. People of Indian and Asian origin are estimated to be at 1.7 million. V.5426

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07. Jun. 2024 BusinessTech

South Africa scores massive own-goal

Woes within South Africa’s visa processes have left businesses and skilled workers in limbo, hurting investment and business activity as a result. Recently, French diplomats warned that South Africa’s strict visa requirements are driving investors away. In addition to this, Western Cape Provincial Minister of Finance and Economic Opportunities, Mireille Wenger, said that a key obstacle attracting investment and expanding business is “the broken South African visa regime.” “To facilitate foreign investment, companies need to be able to easily access South Africa and those who apply for critical skills visas typically help to develop new and existing sectors, in line with international best practice or by helping to new industries through skills development,” said Wegner. Companies aiming to operate in the country must invest a minimum of R5 million and ensure at least 60% of their employees are South African. V.5419

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07. Jun. 2024 SURin english

Almost half the adult population of Spain is having difficulty making ends meet

The rising cost of living has bumped up the number of people at risk of poverty in the country to 12.7 million . `I can`t make ends meet`. This is a phrase that is heard more and more frequently among the people of Spain. Rising food prices, the supply chain crisis and the war in Ukraine have further widened the gap between the cost of living and the salary that many workers in Spain receive at the end of the month. This imbalance between income and expenditure has led to a significant loss of purchasing power, which economists estimate to be around 1,200 euros. V.5420

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06. Jun. 2024 IOL

Cape Town boy can relocate to Germany with mom

The Western Cape High Court has ruled it would be in the best interests of a 12-year-old boy to relocate to Germany following a custody battle between his divorced parents. The Western Cape High Court has ruled it would be in the best interests of a 12-year-old boy to relocate to Germany following a custody battle between his divorced parents. Judge Gayaat Salie granted the mother, an air traffic controller who accepted a job offer in Germany, the right to have her son permanently removed from Cape Town to live with her despite the father submitting a counter application. In her judgment, Judge Salie said: “The most salient words were however expressed by none other than the minor parties’ 12-year-old son, who forms the subject of this application. V.5417

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06. Jun. 2024 Times Lives

25 travellers intercepted on flights from Bangladesh, Pakistan, Ghana and Nigeria deported at OR Tambo

Thirteen Bangladeshis and three Pakistanis were found to be in possession of fake visitors’ visas, while one Bangladeshi, a Nigerian, three Pakistanis and four Ghanaians, failed to meet the entry requirements on arrival. Twenty-five foreigners were intercepted and deported by Border Management Authority (BMA) immigration officials at OR Tambo International Airport (Ortia) on Tuesday night trying to enter South Africa illegally. Thirteen Bangladeshis and three Pakistanis were found to be in possession of fake visitors’ visas, while one Bangladeshi, a Nigerian, three Pakistanis and four Ghanaians failed to meet the entry requirements on arrival. They were intercepted on flights from Bangladesh, Pakistan, Ghana and Nigeria. The BMA said they were deported back in accordance with the International Civil Aviation Organisation (ICAO) regulations. V.5418

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05. Jun. 2024 Reuters

Italy`s Meloni blames organised crime for `alarming` migrant visa fraud

Criminal gangs are exploiting loopholes in Italy`s legal visa system for foreign workers to smuggle in illegal immigrants, a problem the anti-Mafia prosecutor should investigate, Prime Minister Giorgia Meloni told her cabinet on Tuesday. As part of its tough stance on immigration, Meloni`s rightist government has passed an array of measures to curb arrivals, but has also expanded legal immigration channels in response to growing labour shortages. V.5415

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05. Jun. 2024 Daily Maverick

EU visa restrictions on Ethiopians highlight further strains in migration relations

Since 29 April, the European Union (EU) has imposed temporary restrictions on Schengen short-term visas for Ethiopians. These include prohibiting multiple entry visas, longer processing times, and eliminating waivers for certain documentary requirements and visa fees. The European Commission said the action was due to a “lack of response from the Ethiopian authorities regarding readmission requests,” and shortcomings in organising “voluntary and non-voluntary return operations,” (the latter is how the EU describes deportation). The restrictions raise concerns about the efficiency and fairness of the EU’s migration policies. Ethiopia’s Foreign Ministry Spokesperson Nebiyu Tedla said the developments were “incompatible with acceptable diplomatic practices” and asked the EU Council to reconsider the “unfair” restrictions. V.5416

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04. Jun. 2024 Schengen News

Irish Authorities Identified 50 Individuals Without Visas Arriving from UK Last Week

Key Takeaways • 50 people without proper visas or papers have been denied entry to Ireland over the past week. • In recent weeks, several tents have been set up along Dublin’s Grand Canal due to the lack of accommodation for asylum seekers. • Irish authorities have announced regular checks in a bid to prevent any potential violation of immigration laws. Ireland’s National Police and Security Service (Garda) has detected 50 individuals without necessary visas or papers coming from the United Kingdom over the past week. The checks were conducted over a period of four days, starting from May 20, SchengenNews reports. V.5410

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04. Jun. 2024 TraveloBiz

Schengen Visa Rejection: Top 10 Countries with the Most Denied Applications

Planning a European adventure? The Schengen visa unlocks travel across 26 countries, but getting approved can be a challenge. While rejection rates dipped slightly in 2023, some countries are stricter than others. Travelling to Europe requires a Schengen visa, and some countries have higher rejection rates than others. In 2023, more than 1.6 million visa applications were denied, representing 15.8% of all requests filed. Here’s a closer look at the top 10 countries with the highest Schengen visa rejection rates. V.5411

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04. Jun. 2024 Moneyweb

Digital nomad visa a step in the right direction

South Africa has joined more than 50 countries that offer a digital nomad visa to foreign employees and individuals, giving them the opportunity and flexibility to live and work where they want. Although lauded as a step in the right direction, foreign entities and workers must carefully consider the tax and employment implications of their arrangements. It could result in complex tax obligations, making their stay financially less favourable. V.5412

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04. Jun. 2024 SA Migration

Notarial Contract Agreement - EXPLAINED

LIFE PARTNERSHIP AGREEMENT Life partnerships differ from a marriage in that it is neither binding to the husband or the wife or both parties involved. Although the courts have decided whether an express or implied partnership exists, it becomes problematic in proving that such legal obligations exist. Life partnerships (cohabitations) are unique in that they have the same legal consequences as that of a marriage, but parties are not legally bound to each other. Life partnerships (cohabitations) are terminated either by the relationship failing or by death of either party. V.5414

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30. May. 2024 The Economist

Home Affairs to introduce entry visa requirement for non-reciprocating nations

The Ministry of Home Affairs, Immigration, Safety and Security (MHAISS) in a recent announcement, revealed its intention to implement an entry visa requirement for nationals hailing from countries that have not reciprocated Namibia’s favourable visa policies. Etienne Maritz, the executive director at MHAISS, outlined this decision last week, highlighting its aim to foster fair and balanced diplomatic relations. The directive, set to impact citizens from 31 nations, including Belgium, Canada, Denmark, Finland, France, Germany, Britain, and the United States, comes as a response to years of one-sided goodwill gestures from Namibia. V.5406

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30. May. 2024 Reuters

DR Congo names new government after months of delay

Democratic Republic of Congo has appointed a new government, spokesperson Tina Salama said in the early hours of Wednesday, ending an impasse that has mired the country in political uncertainty for months. President Felix Tshisekedi won a second term after elections in late 2023 that also handed his Sacred Union coalition a large majority in parliament. But internal jostling for jobs has delayed the formation of a new cabinet of ministers. V.5407

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Articles

13. Jun. 2024 IOL

Namibia demands reciprocal visas for their nationals

Nationals from thirty one countries will need to complete an online application form and obtain visas-on-arrival. Namibia`s Ministry of Home Affairs, Immigration, Safety and Security (MHAISS) has declared that thirty one countries, mainly from Europe, will be removed from its visa-exempt list due to the lack of reciprocal visa arrangements for Namibian citizens. While the implementation date is yet to be determined, nationals from these countries will need to complete an online application form and obtain visas-on-arrival, as stated by MHAISS. V.5428

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