Immigration and the right to respect for family life in the European context: A reflection on the states' positive obligations and possible lessons for South Africa

Abstract

The former Aliens Control Act 96 of 1991 has been repealed by the Immigration Act 13 of 2002(s 54), which commenced on 12 March 2003. On 26 May 2014, amendments to the Immigration Act 13 of 2002 effected by the Immigration Amendment Act 3 of 2007 (GN 656 in GG 30095 dated 18 July 2007) and the Immigration Amendment Act 13 of 2011 (GN 690 in GG 34561 dated 26 Aug 2011) as well as the Regulations were implemented (GN R413 in GG 37679 dated 22 May 2014). With regard to the issuing of permanent residence permits to a foreign spouse of a South African citizen or permanent resident under the former and now repealed Aliens Control Act, two aspects earlier came under scrutiny in the case of Dawood, Shalabi and Thomas v Minister of Home Affairs (2000 1 SA 997 (C), 2000 3 SA 936 (CC)). The first aspect related to a nonrefundable fee payable by foreign spouse applicants for immigration permits (now permanent residence permits). The second issue concerned section 25(9)(b) of the Aliens Control Act and, in particular, the question whether it was constitutional to require that an immigration permit could be granted to the spouse of a South African citizen who is in South Africa at the time only if that spouse is in possession of a valid temporary residence permit. Both aspects were declared to be inconsistent with the Constitution and thus invalid (see the discussion in par 4 3 below). The applicants, whose temporary residence permits had expired, were therefore entitled to remain in South Africa pending the finalisation of their application for an immigration permit. Important to note for purposes of the discussion below, however, is the fact that when they got married, all three applicants were in the Republic legally. When initially they applied for permanent residence permits, they were in possession of valid temporary residence permits.