FOREIGNER’S RIGHTS TO SA CHILD

MAKING A CASE FOR PERMANENT RESIDENCE FOR FOREIGN PARENTS OF SOUTH AFRICAN CHILDREN – TIME TO CHALLENGE THE RELATIVE’S CATEGORY UNDER SECTION 27(g) OF THE IMMIGRATION ACT 13 OF 2002, AS AMENDED (“the ACT”) AND REGULATION 23(7) OF THE 2014 IMMIGRATION REGULATIONS (“the REGULATIONS”)

The case for granting permanent residence to the foreign adult biological or adoptive parents of a South African citizen or permanent resident child.

What do our immigration laws currently say?

Section 27(g) of the Act, read with Regulation 23(7), allows for permanent residence if the foreign applicant:

1. “is the relative of a citizen or permanent resident”;
2. “within the first step of kinship”; and
3. “the citizen of permanent resident shall satisfy the Director-General that he or she is able and willing to support and maintain the foreign relative making the application”.

How are the Act and the Regulations applied?

The Act does not define what a “relative” is. Nor does it define what the “first step of kinship” is.

Ordinarily, the legal steps of interpretation would apply to any meaning that is open to interpretation and undefined in the specific statute or legislation.

In the first instance, we would refer to the ordinary and literal meaning of what a “relative” is and we would resort to the ordinary dictionary meaning, namely:

“A person connected by blood or marriage”.

At first sight, then a “relative” could be any blood related member of the family or could be determined by marriage.

This definition of “relative” is in turn limited to blood relations within the “first step of kinship” as opposed to widening the extent of blood relatives to extended family members.

Once again, the meaning of “first step of kinship” is undefined and we would take heed of the ordinary literal meaning that would envisage a ‘nuclear’ family unit, namely:

 Mother, father and biological or adopted children.

 So, both the parents to the child, and the converse of child to parent, would be in the first line of kinship and eligible for permanent residence.

However, the Regulations per Regulation 23(7) places a further limitation since such South African citizens or permanent resident must in support of his or her foreign parent “relative”:

1. out of his or her own volition want to support such “relative”; and
2. demonstrate independent financial means to support his or her “relative”.

The net effect of such limitations would thus ONLY allow a foreign relative parent who applies for permanent residence in terms of section 27(g) of the Act, read together with regulation 23(7) of the Regulations, allows for only ONE specific instance of eligibility that caters solely for:

An adult foreign “relative” of an adult (child over 18 years) South African citizen or permanent resident where citizen or resident is: firstly, financially secure; and second, offers to support his or her adult foreign parent who is making the application.

What it does not allow for?

It is plain to appreciate that the adult foreign applicant cannot apply for permanent residence in terms of section 27(g) of the Act, read with Regulation 23(7), where the South African citizen or permanent resident is not financially secure and too young to maintain and support the adult foreign applicant i.e. a minor or child.

In a nutshell, it excludes the adult foreign applicant applying on the basis of his or her biological or adoptive South African child.

Is this exclusion of permanent residence on the basis of a minor South African child constitutionally valid?

Our Constitution is the supreme law of the land. No legislation or person is above the Constitution.

Does the Act and or the Regulations survive constitutional scrutiny?

Section 27(g) of the Act

It is our considered view that the Act does not fall foul of the Constitution. It preserves the right of family, dignity and asserts a rational purpose to have “relative” in a defined family relationship to remain together on a permanent basis subject to typical requirements.

Regulation 23(7)

The Minister of Home Affairs is expressly empowered, in terms of section 7 of the Act, to make Regulations to give further effect to the implementation of the Act.

However, such power to make Regulations on the part of the Minister is limited by the Constitution subject to certain conduct.

Was it constitutionally permissible when the Minister made Regulation 23(7), and included section 27(g) into the same working of section 26(c) and 26(d) of the Act, that requires such South African citizen or permanent resident to show an ability and willingness to support his or her “relative”?

Firstly, when the Minister contemplated the making of, and introduction, of Regulation 23(7), did the Minister property consult with the Immigration Advisory Board to seek guidance and direction into such policy?

Second, the Minister does not actually state “child” or “children” in the text of Regulation 23(7) but it is plain that section 26(c) and (d) relate to foreign children of adult South African parent/s vis-à-vis a right to permanent residence. Naturally, an adult South African parent/s would be expected to be financially secure and willing to support his or her minor foreign child.

Thus, when the Minister refers to section 27(g) in regulation 23(7), where the relationship is inverted, as the child is different to section 26(c) and (d) of the Act in that the South African such minor child could not possibly be financially secure or have an ability to support and maintain his or her foreign parent/s.

Therefore, Regulation 23(7) applies the same approach for all children, as reflected in the text, and in so doing excludes a foreign adult “relative” linked to a South African child.

The question is whether the Minister ought to have excluded reference to “27(g)” in the wording of Regulation 23(7) as being constitutionally unsound?

It is imperative to appreciate that the question of constitutional infringement of Regulation 23(7) against a foreign relative parent vis-à-vis his or her South African child is not purely a matter of infringement towards the applicant’s rights i.e. the foreign adult “relative” but whether such infringement extends also to such child’s constitutional protection.

To simply refuse an adult foreign “relative” application for permanent residence does not end there.

After all, we are dealing with the interests and entrenched rights of children and the recognition of the role of parenting vis-à-vis the child.  It would be major mistake, and a grave failure, to believe that a refusal of such application against the parent does not affect the interests and constitutional imperatives of children who remain one of the most vulnerable of groups in our society.

In fact, in many cases, such South African child would be illegitimate as the foreign parent would not be married to the South African parent and thus be in an extremely vulnerable position. Let us not forget either that we are concerned with South African children.

Is it OK to refuse the adult foreign relative and ignore the status of children and their protection, care, education, medical support and maintenance? No.

Surely, if the adult foreign parent is refused an application to remain permanently in South African because his or her South African child is a minor, it would preposterous, as it would ignore and violate all legal protocols and protective mechanisms by which our statutes seek to protect and maintain children let alone the Constitution.

What are the legal rights and protections of the child whose parent has been refused?

Our Constitution

Our Constitution clearly gives clear and unequivocal protection to all children in South Africa.

The Rights of Children in terms of section 28 of the Constitution, recognizes the fact that “every child has the right to” inter alia:

• Family care or parental care or to appropriate alterative care when removed from the family environment;
• Basic nutrition, shelter, basic health care services social services;
• Significantly, section 28(2) of the Constitution requires that “a child’s best interests are of paramount importance in every matter concerning the child”.

The Rights of Dignity between family members in terms of section 10 of the Constitution would recognize the correlative rights of children and their parent’s role in their upbringing and nurture, care and support until such child is independent and self-supportive.

Our Statutes

 Despite the Constitution there are numerous pieces of primary legislation that are designed to protect and promote the interests of children whilst at the same time impose a duty on the biological or adoptive parents, inter alia:

• Maintenance Act in terms of section 15 and the duty of parents to support their children;
• Children’s’ Act in terms of section 18 dealing with parental responsibilities and rights.

Did the Minister properly consider the rights of children in the working of regulation 23(7)?

It is apparent that the Minister would be obliged to consider the protections of a child when formulating and making Regulations.

It is our considered view that the Minister would not be able to mount a defense against the legitimate limitation of the rights of children by refusing such child’s parent/s to remain permanently in South Africa.

It is undeniable that the foreign relative parent is legally obliged to give effect to such child’s rights to family life and parental responsibility, maintenance/financial support, education, shelter, basic needs. A failure on the part of the parent/s is an offence and by limiting the ability of the parent of such child to abide by its lawful obligations is outrageous and places a further burden on the other parent.

The only basis for the Minister to escape constitutional limitation in terms of section 36 of the Constitution of the current format of regulation 23(7) would be in a society where its norms and values have no regard whatsoever for children and their legal protection.

That defense by the Minister in South Africa is of course unsustainable, repugnant and most indecent. Sadly, this is precisely where we find ourselves at this point in time until such regulations are tested and reworked.

What about the failure of the Immigration Advisory Board (“IAB”)?

It is our contention that the failure on the part of the Minister to consult properly and in a meaningful way with the IAB is also a breach of section 33 of the Constitution where all persons have a legitimate expectation that the Minister, would, in making regulations affecting members of the public, in such a drastic manner when children are involved, have properly consulted with his IAB to ensure that the policy and Constitution are not misaligned leaving such Regulation 23(7) susceptible to breaching the rights of administrative justice of foreign “relative” applicants applying on basis of his or her South African child.

Conclusion

What is plain is that the Minister has failed in his duty to consider the interests of children as is incumbent on him in section 28 of our Constitution.

At the same time the Minister would also be mindful, and in fact, legally obliged to consult with his IAB in making such far-reaching laws that impact on children’s’ lives as expected in terms of section 33 of our Constitution.

The question remains whether the Minister is mindful of the woeful state of affairs and impact on all members of the family that fall prey to the workings of regulation 23(7).

It is constitutionally inexcusable and impermissible to ignore the fact that the child’s interests are simply overlooked as if the child has no link to the foreign relative parent, whatsoever, when such parent is barred from gaining permanent residence in South Africa.

The reality is even more disastrous as such foreign “relative” in the “first step of kinship”  would not be able to remain in South Africa save for a two-year temporary residence visa that prohibits work. It is practically impossible unless the foreign relative parent is highly skilled to procure a exceptional or critical skills working right in South Africa to support such child if he or she is not married to the other parent as a spouse.

Consider the child born illegitimately and the odds of a financially, socially integrated, emotional and mentally stable environment of one working parent.

 

IMMIGRATION DIVISION – SMIEDT & ASSOCIATES