The intersection of family, immigration, and refugee law can be complex for practitioners, particularly when dealing with cases involving domestic violence. In South Africa, a foreign spouse who is a victim of domestic violence and has overstayed their visa due to the withdrawal of support from their South African permanent-resident partner may face significant challenges in seeking protection.
A spousal visa is one way an immigrant can obtain legal status in South Africa, but its validity is dependent on the existence of a “good faith” spousal relationship. If the relationship ends due to domestic violence, the foreign spouse may become an “illegal foreigner” overnight, facing potential deportation and re-entry bans.
The Domestic Violence Act of 1998 provides safeguards against violence but does not offer remedies for immigration in cases of foreign victims. In contrast, the United States has the Violence Against Women Act, which enables abused foreign spouses and children of US citizens or permanent residents to obtain lawful permanent residence and work authorization without the abuser’s knowledge or cooperation.
In South Africa, a protection order under the Domestic Violence Act can provide safety and evidence for an asylum claim, but it does not grant or maintain lawful immigration status. The foreign spouse remains an illegal foreigner and may be forced to rely on the sponsor’s goodwill under the Immigration Act.
A recent court decision, Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, declared certain sections of the Refugees Act and regulations unconstitutional and invalid, removing the “good cause” filter that previously barred access to the asylum determination process. However, the practical implementation of this judgment remains critical, and courts must now independently assess whether there is a valid reason for newcomers to remain.
Challenges for Overstayers
Overstayers, particularly those who have been victims of domestic violence, have historically suffered injustices. The “good cause” filter under the previous regulatory framework required applicants to provide compelling reasons for their overstay before accessing the asylum determination process. This process often re-traumatized survivors and led to premature rejection of their claims.
The administrative process imposes a high and inconsistently applied standard of proof. The structural challenges, including premature arrests at Refugee Reception Offices, detention without merits review, issuance of temporary appointment slips in place of s 22 permits, and the persistent risk of refoulement, further disadvantage survivors of domestic violence. The abuse underlying the overstay was central to the “good cause” requirement, but adversarial interviews may have re-traumatized survivors and led to premature rejection of their claims.
The Constitutional Court’s judgment in Scalabrini fundamentally alters the position of foreign spouses who are victims of domestic violence. However, the next challenge lies in implementation, giving practical effect to the judgment and ensuring that the rights of these individuals are protected.
As an illegal foreigner, approaching an RRO carries deportation risk if the application is not accepted. Therefore, for an overstayer who was on a spousal visa, it might alert the Department of Home Affairs of the relationship breakdown, accelerating visa cancellation or undesirable status with multiple-year re-entry ban. And it could complicate any future asylum claim by portraying the stay as tied to a disputed marriage rather than genuine fear of persecution in the home country. Such spouses are prone to refoulement.
As the courts continue to grapple with the complexities of immigration and refugee law, it is essential to consider the experiences of foreign spouses who are victims of domestic violence. The removal of the “good cause” filter is a significant step forward, but it is only the beginning of a long process to ensure that these individuals receive the protection and support they need.
However, the implementation of this judgment will require careful consideration of the complex issues involved, including the rights of foreign spouses who are victims of domestic violence.
Asylum Access for Spousal Overstayers
The Refugee Reception Offices will play a key role in the implementation of the Scalabrini judgment. The use of temporary appointment slips in place of section 22 permits has been a point of contention, and it is essential that this practice is reviewed in light of the Scalabrini judgment.
The court‘s decision in Ruta v Minister of Home Affairs had previously intervened to remedy and close the gaps in refugee law, particularly in an effort to assist newcomers into the asylum system. However, the “good cause” filter still existed as a hurdle, and it was only with the Scalabrini judgment that this barrier was removed.
The Western Cape High Court in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (Amnesty International and Others as Amici Curiae) [2025] 3 All SA 827 (WCC) declared ss 4(1)(f), (h) and (i), as well as s 21(1B) of the Refugees Act, along with regulations 8(3) to (4) – unconstitutional and invalid. The Constitutional Court has now confirmed the declaration of invalidity in respect of the impugned statutory provisions. In relation to the regulations, the court held that confirmation was not required because they constitute subordinate legislation. Since the respondents’ purported application for leave to appeal the invalidation of the regulations was fatally defective, the High Court’s declaration remains operative.
