Obtaining a spousal visa for foreign spouses of SA citizens is at best an obstacle course on a time-eating road

Chart: Supplied

By An Wentzel

2 Nov 2023

It can take a mere two months to obtain a spousal visa if the foreign spouse of a South African citizen applies from outside the country. However, if they apply from inside South Africa it becomes a waiting game and they cannot leave until the process has been completed.

According to Xpatweb, processing time for a South African spouse visa takes “four to eight weeks (depending on the country of submission)”.

But, what if you are the foreign spouse of a South African citizen wanting to obtain a spousal visa from inside South Africa? Daily Maverick was contacted by a reader having a hard time getting a straight answer, or in fact any answer, on the status of their visa application, about four months into their application process.

Dealing with South Africa’s Department of Home Affairs (DHA) – infamous for its reputation for long queues, unhelpful staff and long waiting times and erroneous refusals of all kinds of paperwork much needed by citizens and visitors alike in the course of going about their daily lives – is almost always time consuming and very often expensive, in one way or another.

If one looks at the DHA website it appears that a foreigner married to a South African citizen does not have to jump through too many hoops to gain a spousal visa or even temporary residency. However, there are waiting periods and lots of frustration and information gaps along the way – some on the side of the applicants but more often, it would appear, on the side of the processing Home Affairs officials.

It will be really tough for me to be unable to leave the country if something should happen to my parents.

Attorney Gary Eisenberg of Eisenberg & Associates explains that it is important to be clear on what type of visa you are applying for:

“The Immigration Act contemplates two types of ‘spousal visas’ – a relative visa (section 8 of the act) which is granted for two years and does not allow the holder to work or study. The other type is the so-called section 11(6) visitor visa which is issued for two to three years and allows the visa holder to work or study.”

Eisenberg goes on to explain that the law around both of these visas has not changed since 2014, but did undergo a not insignificant “update” in 2019:

“When the law was first introduced in 2014, spouses holding tourist visas had to return to their countries of origin to apply for their ‘spousal’ visas. Only as a consequence of the Constitutional Court’s judgment in Nandutu in July 2019 (in which I was the attorney of record) was the DHA forced to enable spouses to apply within South Africa.”

He confirms that spousal visas could then be applied for from within the country since 2019. However, if applied for while in South Africa, the applicant cannot leave before the application process has been finalised.

A Daily Maverick insider, who wanted to remain anonymous, says they were shocked to be told by their immigration consultant, only after they had already submitted their visa application from inside South Africa, that they could not leave until the process had been completed – which could be a year or more:

“I wish I had known that before I submitted the application. It will be really tough for me to be unable to leave the country if something should happen to my parents. It’s not a good feeling that if something did happen to family in England, to not be able to go back. And Christmas plans are now obviously not going to happen.”

The insider, a British citizen who works in education, has been in a relationship with a South African for a number of years and had always planned to settle in South Africa:

“I have to stay as I am relocating to SA and I would like to work here and pay taxes here.”

Starting the process of looking into how to apply for and obtain a visa, it had at first appeared that the applicant might be able to apply and still leave the country while the application was in the process. However, after submitting in July this year, and despite having looked at a lot of “sources of information”, they discovered that it would not be possible to leave until the application process had been completed.

In fact, a DHA directive had been in place for a short period, which allowed people who had applied from inside the country before the end of March 2023 to be able to leave on condition that they could show their receipt for their handed-in application. The insider’s application was a few months too late for this directive to apply.

While the cost of the application is also stated as a one-off of R1,550, once attorneys and consultants are involved that one-off is joined by other costs.

spousal visa Chart: Supplied

There is also a number of documents involved: marriage certificate, proof of spouses’ South African citizenship or residency, a medical report, an unabridged birth certificate, radiology reports unless the applicant is a pregnant woman or child under the age of 12 years, a police clearance certificate from your home country and all other countries you have lived in for more than 12 months as an adult, and a letter of support from your spouse – to name a few.

But as Eisenberg notes, it is best to be on the lookout for new directives from the DHA. In May 2023, a directive noted that:

The radiology report requirement had been dropped; and

Instead of needing police clearance certificates for all the countries the applicant had lived in for more than 12 months, they only needed to supply police certificates from countries they had lived in for the five years before their application.

Read the directive here.

While the DHA website points to an efficient organisation that even has WhatsApp numbers and a section on how to complain and where, getting someone to answer the WhatsApp number is a struggle most days. Then, when they do pick up, the system is often offline, which they quickly add “is a national problem” which is possibly meant to make the caller feel better but definitely has exactly the opposite effect.

Also, calling or emailing the DHA (they have an office or department called Counter Corruption & Security Services and encourage people to call, email or speak to any DHA office manager directly) to complain about the DHA does not seem like it would encourage people to call – what happens to the documents being processed while the complaint is processed, seems a fair question in light of concerns about corruption at the DHA.

Read more in Daily Maverick: Hell Affairs

At least one source told the Daily Maverick that they have proof of corruption and corrupt officials at the DHA, but would rather speak to the media than the DHA, feeling they have a better chance of getting results complaining about the DHA outside the organisation than inside it.

They may be right about having a better reaction from the DHA to external pressures rather than internal ones. This seems to be the case when the DA lodged a complaint with the Public Protector against the DHA earlier this year.

On 7 July DA MP Angel Khanyile announced:

“The DA has today lodged an official complaint with the Public Protector, Advocate Kholeka Gcaleka, requesting that she investigates the continued failure by the Department of Home Affairs (DHA) to issue Smart ID cards to naturalised South African citizens.”

When Daily Maverick followed up with Khanyile this week, she told us that while they were still awaiting feedback from the Public Protector:

“During the Portfolio Committee meeting on 10 October 2023, the DG, Mr Makhode, advised that he had been instructed by the Minister to implement the processing of Smart ID cards for naturalised citizens with immediate effect.”

Khanyile added that they would “monitor the matter very closely”.

The DHA was approached for comment but did not respond by time of publication.

The Daily Maverick insider waiting for their visa application process to be completed hopes it does not take a year (or more) and offers some advice to other spouses of South African citizens who want to apply for their spousal visa:

“The advice I wish I had been given was to extend my tourist visa and go home and apply from there.” DM

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