Stewart and Others v Minister of Home Affairs and Another (12520/2015) [2016] ZAWCHC 20 (29 January 2016)

Stewart and Others v Minister of Home Affairs and Another (12520/2015) [2016] ZAWCHC 20 (29 January 2016)

The court found that the Department of Home Affairs erred by treating the second applicant's application for a spousal visa as one for a relative's visa. The Immigration Act, properly interpreted, allows a foreign spouse of a South African citizen to apply for a visitor's visa under section 11(6) without having to leave the Republic. The impugned provision, section 10(6)(b), which prohibits applications for a change of status attached to a visitor's visa from within South Africa, does not affect the second applicant's entitlement to a spousal visa. The court held that the second applicant is entitled as of right to a visitor's visa under section 11(6), and there is no need to exhaust...

Citation
[2016] ZAWCHC 20
Parties
Applicant: Heathcliffe Albyn Stewart; Applicant: Lea Suzanne Stewart; Applicant: Joshua Daniel Stewart; Applicant: Aiden Jason Stewart; Applicant: Luke Benjamin Stewart; Applicant: Ethan Jesse Stewart; Respondent: Minister of Home Affairs; Respondent: Director General, Home Affairs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 January 2016
Case Number
12520/2015
Procedural Posture
Constitutional Review / Judgment
Outcome
Application granted. The second respondent is directed to issue the second applicant with a visitor's visa as contemplated in section 11(6) of the Immigration Act, and the respondents are ordered to pay costs.
Judges
Donen AJ
Legal Topics
Immigration Act, Spousal Visa, Constitutional Invalidity, Review of Administrative Action, Internal Remedies, Separation of Powers
Constitutional Law Administrative Law Immigration Act Spousal Visa Constitutional Invalidity Review of Administrative Action Internal Remedies Separation of Powers

Case Brief

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Parties

Heathcliffe Albyn Stewart

Applicant

Lea Suzanne Stewart

Applicant

Joshua Daniel Stewart

Applicant

Aiden Jason Stewart

Applicant

Luke Benjamin Stewart

Applicant

Ethan Jesse Stewart

Applicant

Minister of Home Affairs

Respondent

Director General, Home Affairs

Respondent

Procedural Posture

Constitutional Review / Judgment

Legal Issues

  1. 1 Whether section 10(6) of the Immigration Act, as read with the 2014 Regulations, unconstitutionally requires foreign spouses of South African citizens to apply for spousal visas from outside the Republic.
  2. 2 Whether the Department of Home Affairs' refusal of the second applicant's spousal visa application was lawful and constitutional.
  3. 3 Whether the court should substitute its own order for the Department's decision and direct the issuance of a spousal visa.

Ratio Decidendi

The court found that the Department of Home Affairs erred by treating the second applicant's application for a spousal visa as one for a relative's visa. The Immigration Act, properly interpreted, allows a foreign spouse of a South African citizen to apply for a visitor's visa under section 11(6) without having to leave the Republic. The impugned provision, section 10(6)(b), which prohibits applications for a change of status attached to a visitor's visa from within South Africa, does not affect the second applicant's entitlement to a spousal visa. The court held that the second applicant is entitled as of right to a visitor's visa under section 11(6), and there is no need to exhaust...

Court Disposition

Application granted. The second respondent is directed to issue the second applicant with a visitor's visa as contemplated in section 11(6) of the Immigration Act, and the respondents are ordered to pay costs.

Orders

  • The second respondent is directed to issue the second applicant with a visitor's visa as contemplated in section 11(6) of the Immigration Act 13 of 2002, and to afford her the right and liberty to apply for permanent residence contemplated by section 26(b) of the Act within three months of this judgment.
  • The respondents shall pay the applicants' costs, including those occasioned by the employment of two counsel.