South African Immigration • Relatives Visa • Parents of Citizen Children

“My Child Is South African, But I’m Not” – How a Landmark Court Case Opened the Door to Work Rights for Foreign Parents

Names in this story are adapted, but the legal position is very real and current.

For years, Musa* did everything “right.” He fell in love with a South African woman, they built a life together, and they had a beautiful daughter – a South African citizen by birth.

When the adult relationship ended, Musa faced an impossible choice:

• Leave South Africa and lose the daily reality of being a present father, or
• Stay in South Africa without proper status and risk arrest, deportation, and never getting a proper visa again.

The law treated him as if his only real connection was his ex-partner.

The truth? His most important connection was his South African child.

He’s not alone. Thousands of foreign parents of South African children have been caught in the same trap – until a landmark judgment of the Constitutional Court changed the game.

1. The Relatives Visa in Plain Language (Section 18)

A Relatives Visa is a temporary residence visa for immediate family members of South African citizens or permanent residents – including parents, children, spouses and sometimes other close relatives. In the context of foreign parents, it’s usually a Section 18 Relatives Visa based on their relationship to a South African child.

Before the Constitutional Court stepped in, the law was harsh:

• Many foreign parents held visas based on their relationship with a South African partner (for example, a spousal or life partner visa).
• If that adult relationship ended, the law effectively told them: stop working, leave South Africa, and re-apply from outside – even if their child was South African and living here.
• Relatives Visas were often seen as “no work allowed”, leaving parents unable to lawfully earn an income to support their child.

It was a legal framework that ignored something obvious: A child’s right to have a present, active parent is not a luxury – it’s a constitutional issue.

2. The Constitutional Court Case That Changed Everything

In 2023, the Constitutional Court heard the consolidated matters of Rayment and Others v Minister of Home Affairs and Anderson and Others v Minister of Home Affairs, reported as [2023] ZACC 40.

The applicants were foreign parents and caregivers of South African citizen or permanent resident children who were being forced to:

• Leave South Africa when their relationship with a South African partner ended; and/or
• Stop working because the law did not clearly allow them to work on a Relatives Visa linked to their child.

The Court examined several key provisions of the Immigration Act and its regulations – including section 11(6), section 18(2), and regulation 9(9)(a) – and found that, as they operated, they were inconsistent with the Constitution.

The Court didn’t just criticise – it fixed the law on an interim basis. Among other things, it:

• Declared parts of the Immigration Act and regulations invalid
• “Read in” new wording so that:
  • Certain foreign parents of citizen/permanent resident children can stay in South Africa while applying for a new visa, and
  • Section 18(2) is deemed to allow those parents to work for the full duration of the Relatives Visa.
• Gave Parliament time to formally amend the Act.

In short, the Court recognised that a foreign parent who is genuinely caring for a South African child is not just “another foreigner” – they are part of a constitutional family story that the law must respect.

3. What This Means for You as a Foreign Parent

If you are a foreign national and your child is a South African citizen or permanent resident, this judgment may open an important door for you.

In many cases, you may now be able to:

• Apply for a Section 18 Relatives Visa based on your relationship with your child;
• Stay in South Africa while that application is processed (if you fall within the protected category); and
• Have your Relatives Visa endorsed with work rights, so you can legally work or operate a business to support your child.

Every matter is fact-specific, but some of the big picture signals from the Court are:

• Your active role in your child’s life matters.
• Your ability to earn an income to support your child is legally relevant.
• Immigration rules must be interpreted and applied in a way that respects the best interests of the child and the right to family life.

4. When a Relatives Visa with Work Rights Makes Strategic Sense

A child-based Relatives Visa may be a powerful and humane option if:

• Your previous visa was linked to a South African spouse/partner and that relationship has ended;
• You have a South African citizen or permanent resident child, and you are actively fulfilling parental responsibilities (or intend to do so);
• You want to remain legally in South Africa, not “under the radar”;
• You need to work or run a business to support your child.

In many cases, this route can be part of a broader long-term status strategy, not just a short-term “survival visa”.

5. Beware of Copy-Paste Templates and “Shortcut” Advice

When a new court judgment becomes famous, a wave of “templates” and social-media advice always follows:

• “Just mention the Constitutional Court, they must approve you.”
• “Just say you have a South African child and attach a birth certificate.”
• “Everyone now gets work rights, don’t worry about the details.”

This is dangerously incomplete.

6. How Virtual Migration Services Helps Foreign Parents Build Strong Cases

At Virtual Migration Services (VMS), we specialise in family-based South African immigration – including Relatives Visas, spousal/life partner visas, study visas for children, and appeals.

For foreign parents of South African children, we focus on:

• 1. Building your case correctly
  We handle your full visa strategy: relationship breakdown, parental involvement, documentation, and legal framing.
• 2. Applying the Constitutional Court judgment properly
  We apply the Rayment / Anderson judgment to your case only where applicable and only in a way that strengthens your credibility.
• 3. Producing an evidence-led file
  Your visa submission must be coherent, consistent, and solidly grounded in immigration law and child rights.