The intersection of family, immigration, and refugee law can be complex for practitioners, particularly in cases involving domestic violence. When a foreign spouse’s visa expires due to the withdrawal of support by their South African permanent-resident partner, often amidst domestic violence, they may become an “illegal foreigner” overnight. This can lead to potential “undesirable” status, deportation, and re-entry bans.
Even if the spouse has a well-founded fear of persecution in their home country, their only potential alternative for protection would be an asylum application. However, they must face a systematic hurdle to show “good cause” in the interview with the Refugee Reception Officers (RRO). This de facto barrier makes the pathway narrower for such spouses who have become overstayers.
The Spousal Visa and the Aftermath of an Overstay
A spousal visa is one way an immigrant may obtain legal status in South Africa. Section 11(6) of the Immigration Act 13 of 2002 provides that a spouse of a South African citizen or a permanent resident may obtain a s 11(6) spousal visa subject to the existence of a “good faith” spousal relationship. The requirement for renewal of the visa is the existence of the good faith spousal relationship, and the citizen or permanent resident spouse must depose to an affidavit confirming the existence of the “good faith” relationship.
One of the circumstances that may end a “good faith” spousal relationship is domestic violence. The South African citizen or permanent resident spouse may sanction the foreign spouse out of malice, or a mere genuine irretrievable breakdown of the relationship, with a non-renewal of the spousal visa. On the other side, the effect weighs on the foreign spouse of the South African citizen or permanent resident who is on a s 11(6) visa; they automatically become illegal, ‘undesirable’ and an overstayer.
Domestic Violence and the “Good Cause” Requirement
The Domestic Violence Act 116 of 1998 provides safeguards against violence but excludes remedies for immigration in case of foreign victims. A protection order under the Domestic Violence Act provides safety and evidence but confers no immigration remedies, particularly to the legal stay of an abused spouse. The foreign spouse remains entirely dependent on the sponsor’s goodwill under the Immigration Act.
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In contrast, other jurisdictions, such as the United States, have equivalent mechanisms, like the Violence Against Women Act of 1994 (VAWA), which enables abused foreign spouses and children of US citizens or permanent residents to obtain lawful permanent residence, deferred action, and work authorization without the abuser’s knowledge or cooperation.
The decision of Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC) was an intervention to remedy and close the gaps in refugee law. The Constitutional Court determined the matter in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, confirming the declaration of constitutional invalidity of certain sections of the Refugees Act.
Implementation and Practical Challenges
Courts would have to independently assess whether there is ‘good cause’ for the newcomer to remain. This has led to arrests at RROs for overstaying, even when an intent to apply is expressed.
The South African government must also take steps to implement the Scalabrini judgment. They will have to provide training to Refugee Reception Officers and other officials on the new procedures and ensure that they understand the importance of protecting the rights of survivors of domestic violence.
