Section 26 of the Act – Direct Residence
Section 27 – Residence on other grounds
10. Section 27(g)of the Act – Relative’s category
The relative’s category for PR allows for foreign applicants to qualify in the “first line of kinship” to a South African citizen or permanent resident.
The scope of this PR category is called into question and the meaning of “first line of kinship”. There is an argument to be made that ‘spouses’ are counted as the first step in terms of the definition of “immediate family” and thus spouses could apply under the PR category and avoid section 26(b) showing five years as ‘spouses’.
At face value, this category of PR would include parents of South African children but what the Department sought to do is insert Regulation 23(7) of the 2014 Regulations wherein it requires of the South African citizen or permanent residence to be “able and willing to support and maintain the foreign relative making the application”. This provision attempts to exclude parents of South African children, and in our view, is unconstitutional and contrary to the interests of minor children in terms of section 28 of our Constitution.
Therefore, the Department have restricted this PR category solely to foreign adult applicants of adult South African citizens and permanent residence holders. It is also irrational that the foreign applicant would have to wait for his or her child to become an adult when the child would be more in need in his or her formative years.