On 4 December 2023, the Constitutional Court of South Africa delivered a landmark ruling in Rayment and Others v of Home Affairs (CCT 176/22), declaring parts of the Immigration Act and its Regulations unconstitutional. This judgment significantly impacts foreign nationals who were previously unable to regularise their immigration status after the termination of a good faith spousal relationship with a South African citizen or permanent resident.
In response, the Department of Home Affairs (DHA) issued Immigration Circular No. 11 of 2024, signed and dated 17 March 2025, which provides interim measures for affected foreign nationals while legislative amendments are being processed.
Key Implications of the Judgment and Circular
1. Foreign Parents Can Now Regularize Their Status
Previously, when a foreign spouse’s relationship with a South African citizen or permanent resident ended, they faced severe restrictions on their ability to remain in the country and provide for their South African children. The Constitutional Court ruled that this limitation violated the constitutional rights to human dignity and family life.
Under the new directive:
- A foreign parent who is fulfilling their financial responsibilities or demonstrates an intention to do so for a South African citizen or permanent resident child may apply for a new visa category within three months from the termination of the spousal relationship.
- If the foreign parent applies for a relative’s visa under Section 18(1) of the Immigration Act, the visa may now be endorsed with permission to work or conduct business, allowing them to support their child financially.
- If an application is submitted after three months, the foreign national must provide good cause for the delay, as contemplated under Section 32(1) of the Immigration Act.
- While the application is pending, the current visa remains deemed valid, ensuring legal stay in the country.
2. Rights Extended to Foreign Spouses Without Children
Even in cases where the terminated spousal relationship did not produce children, the foreign spouse is now permitted to apply for a visa within three months, provided they meet the eligibility criteria.
3. Application Process, Required Documents and Assistance
The application process requires specific supporting documents, which vary depending on the applicant’s circumstances. To ensure compliance and improve the chances of success, we recommend consulting with an experienced immigration attorney such as NM Heinze Attorneys.
4. Validity and Implementation of the Circular
This directive remains in effect until the Immigration Act and its Regulations are formally amended. DHA is required to process applications in compliance with the Constitutional Court’s ruling and the new Standard Operating Procedures (SOPs)
Conclusion: A Step Toward Fairer Immigration Policies
The Rayment judgment is a major victory for the rights of foreign nationals and their South African families. It eliminates unfair legal barriers that previously led to the separation of parents from their children and prevented them from earning a livelihood.
At NM Heinze Attorneys, we are closely monitoring the implementation of these changes and assisting affected individuals with their visa applications under the new framework. If you are impacted by this ruling, contact us today for expert legal assistance in securing your immigration status in South Africa.
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