This month I wish to share with you three relevant updates regarding South Africa.
If you are a spouse of a South African citizen, have a South African child or are a Chinese national based in South Africa, this update is important for you.
We have practical confirmation that our Department of Home Affairs has started to implement a Constitutional Court decision regarding the change of status from a visitor visa for foreign spouses of South African citizens or permanent residence holders.
One of our clients who is married to a South African citizen entered South Africa on a normal tourist visa. She then applied for a critical skills visa from within South Africa according to the decision of the Constitutional Court. The application for critical skills visa was refused due to to her tourist visa status. We then appealed this decision. When submitting the appeal VFS informed our client that the appeal will have no success since spouses of citizens or permanent residence holders can only change from tourist visa, sec. 11 (1), to long term tourist visa based on spousal relationship, sec. 11 (6) or relative visa. We insisted to accept the appeal. A few days ago, we collected the appeal. It was successful and our client was granted with her critical skills visa for 5 years. Our client was rather grateful that she did not list to the advice of VFS and had our legal expertise on her side.
Practically this means that spouses of citizens or permanent residence holders can change to any visa they apply for from a normal tourist visa according to section 11 (1).
The foreign parent of a South African child can now apply for permanent residence. The acting DG has confirmed to me during a personal meeting that the legislation changes which was published in November 2018 is in force. We were always of this opinion and advised clients accordingly, but it was good to get confirmation from the DG himself. In the past DHA refused permanent residence applications of one parent based on a citizen child. Despite the contrary advise from several lawyers that this practice infringes the constitutional right of the child, DHA was adamant and argued that the child has no legal will to support his or her foreign parent financially. The legislation amendment of November 2018 has abolished this requirement.
Lastly, our Home Affairs has reacted to the recent Corona Virus outbreak and published a directive allowing certain Chinese nationals to change their status in South Africa and avoid going back to their home country.
Holders of an Intra Company Transfer Visa which expires until 31 July 2020 may apply for our short-term work visa according to section 11 (2) from within South Africa. They can then extend the short-term work visa by another 90 days from within country, taking their extension to a maximum of 180 days. Holders of a visitor visa will be allowed to extend their stay by a maximum of 90 days.
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Written by: Andreas Krensel
