In a democratic society rooted in human dignity, equality, and freedom, the right to family life should stand as an unshakable pillar. Yet, there exists a troubling reality in South Africa’s immigration framework: the automatic imposition of banning orders on foreign spouses of South African citizens who overstay their visas.

 While the intent of such orders is to curb visa violations and ensure compliance with immigration laws, the sweeping nature of these bans often leads to unintended—and unconstitutional—consequences.

 The Problem

 When a foreign spouse overstays their visa, the Department of Home Affairs (DHA) may issue a declaration of undesirability, effectively barring them from re-entering South Africa for a period of 1 to 5 years. This decision applies irrespective of whether the overstayer is married to a South African citizen or even has children born in South Africa.

 This broad application fails to account for the unique and constitutionally protected nature of spousal and familial relationships.

 The Human Cost

 Consider this scenario: A foreign national, married to a South African citizen, overstays their visa due to circumstances beyond their control—delays in visa processing, administrative errors, or even financial hardships. When the banning order is imposed, the couple is forcibly separated, often with devastating consequences:

• Families are torn apart. Spouses are separated across international borders, while children are left without one of their primary caregivers.

• Emotional and financial strain. Families are forced to bear the exorbitant costs of international travel and legal fees to appeal the ban.

• Violation of constitutional rights. The right to dignity and family life, enshrined in Section 10 and Section 28 of the Constitution, is disregarded.

 Why This is Unconstitutional

 South Africa’s legal framework places a high value on the family unit. The Constitutional Court has repeatedly affirmed that the state must act in a manner that protects and promotes the institution of family.

 By imposing a blanket ban on foreign spouses without considering the specific circumstances of their relationship or the reasons for overstaying, the DHA may be acting in violation of:

• Section 10: The right to human dignity. Forced separation from one’s spouse undermines the dignity of both partners.

• Section 28(2): The principle that the best interests of the child are paramount. When one parent is barred from re-entering the country, children suffer irreparable harm.

• Section 9: The right to equality. Foreign spouses are treated the same as other overstayers, despite their special status as partners of South African citizens.

 A Call for Reform

 The Department of Home Affairs must urgently address this issue. A just immigration system cannot be blind to the realities of human relationships.

 Here are three steps the DHA should take:

1. Amend the legislation or regulations. Introduce provisions that exempt foreign spouses of South African citizens from automatic banning orders, ensuring their cases are evaluated on an individual basis.

2. Implement a waiver process. Create a streamlined process for foreign spouses to apply for waivers in cases of overstays, prioritizing cases where family unity is at stake.

3. Train officials. Ensure that immigration officers are trained to exercise discretion and consider constitutional principles when issuing declarations of undesirability.

 The Way Forward

 South Africa has a proud history of championing human rights and social justice. It is imperative that our immigration laws reflect these values by safeguarding the sanctity of the family unit.

 For spouses of South African citizens, the stakes are too high to ignore. It’s not just about visas or borders—it’s about keeping families together and upholding the very principles that define our democracy.

 The time to act is now. Let’s ensure that no family is torn apart by a system that should protect, not punish, their right to be together.

 If you’ve experienced a similar situation or would like to contribute to this discussion, feel free to share your thoughts or reach out. Together, we can advocate for a fairer and more compassionate immigration system.