# PR through your SA child - not possible



## LegalMan (Dec 26, 2012)

There have been a great deal of questions regarding obtaining PR through your child. In fact, I've often stated that it is possible and we've done it for clients before. Those days are now numbered.

The new SA immigration regulations now stipulate clearly that the child must be able to support the applicant. Here is the wording:

"23 Permanent Residence
...
(7) In the case of an application contemplated in section 25(2) of the Act in respect of a permanent residence permit contemplated in sections 26(c) and (d) and 27(g) of the Act, the citizen or permanent resident shall satisfy the Director-General that he or she is able and willing to support and maintain the foreign relative making the application."

Home Affairs didn't seem to mind this, but more recently we've seen them reject and now we don't advise this PR application type any longer.


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## explorer1 (Dec 1, 2013)

Reading your post my understanding is that if your child is a minor and does not have any source of income then it will not be easy to fulfill the PR requirements. The question that comes to mind is what happens if the parent is a highly skilled professional who in case of having a PR would easily get a job to support the minor thereby potentially lessen the burden on the Gov (read one person less on the social benefits) and more $$ for SARS.

Is the case different where a "child" is an adult having a full time job?.


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## LegalMan (Dec 26, 2012)

explorer1 said:


> Reading your post my understanding is that if your child is a minor and does not have any source of income then it will not be easy to fulfill the PR requirements. The question that comes to mind is what happens if the parent is a highly skilled professional who in case of having a PR would easily get a job to support the minor thereby potentially lessen the burden on the Gov (read one person less on the social benefits) and more $$ for SARS.
> 
> Is the case different where a "child" is an adult having a full time job?.


Yes, that is exactly it. Most of these applications are with children who are very young.


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## rainbow84 (Feb 8, 2010)

Will this affect outcome of applications submitted before the regulation change?


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## LegalMan (Dec 26, 2012)

Theoretically it should not, but in reality it probably will.


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## tinaye05 (Mar 24, 2014)

Hi Legalman,

What if me (the mother) I am employed (spouse with work endorsement) do you think the outcome will likely work?

Thanks


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## LegalMan (Dec 26, 2012)

waters364 said:


> Hi Legalman,
> 
> What if me (the mother) I am employed (spouse with work endorsement) do you think the outcome will likely work?
> 
> Thanks


That's a good question, however since the PR application is through the child I don't think it will.


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## tinaye05 (Mar 24, 2014)

That is not good, I guess will have to wait for 2 more years to qualify through the spouse route.

Thanks for response!


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## cjrae76 (May 30, 2014)

Hi Legalman do you think they review it case by case. would i get rejected if my situation was the following
I've been on a life partner visa for 4 years. We got married and have been on a relative visa for the last 3 years. our son which was born here is now 5 years.( So i'm clear not trying to scam dha)
or must i now wait another 2 years now to apply through my spouse


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## LegalMan (Dec 26, 2012)

cjrae76 said:


> Hi Legalman do you think they review it case by case. would i get rejected if my situation was the following
> I've been on a life partner visa for 4 years. We got married and have been on a relative visa for the last 3 years. our son which was born here is now 5 years.( So i'm clear not trying to scam dha)
> or must i now wait another 2 years now to apply through my spouse


Wait and apply through your spouse. The DHA will see a 5 year old child that cannot support his parent.


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## rubelbgdsa0 (Jul 23, 2011)

How about those who allready got the PR under the section 27 (g)?


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## LegalMan (Dec 26, 2012)

rubelbgdsa0 said:


> How about those who allready got the PR under the section 27 (g)?


Well done to them!!


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## rubelbgdsa0 (Jul 23, 2011)

LegalMan said:


> Well done to them!!



Haha.. Feeling lucky!!!


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## Tony556 (Dec 5, 2014)

The problem here is that the regulations were poorly drafted. The PR section 27(g) has its equivalent in section 18 temporary residence. In section 18 and relevant regulations there is an exemption provided for when the South African is minor. however there is no exemption in PR but the application form also makes mention of the exemption for PR applications.

Currently this section is unconstitutional because its irrational and conflicts with a principle refereed to as the principle of legality.
secondly it is unconstitutional as it goes against section 28 of the constitution dealing with the rights of the child.

i am currently in the High Court with a matter challenging this section so hopefully in the coming weeks this will be sorted.

In the mean time i would suggest avoiding this application as it will most certainly lead to disappointment. Focusing on other grounds for PR would be advisable.

Also the Department tends to be inconsistent in its adjudication of these applications. i have seen some applications come back approved but it is probably a fluke


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## Jack14 (Oct 26, 2014)

Tony556 said:


> The problem here is that the regulations were poorly drafted. The PR section 27(g) has its equivalent in section 18 temporary residence. In section 18 and relevant regulations there is an exemption provided for when the South African is minor. however there is no exemption in PR but the application form also makes mention of the exemption for PR applications.
> 
> Currently this section is unconstitutional because its irrational and conflicts with a principle refereed to as the principle of legality.
> secondly it is unconstitutional as it goes against section 28 of the constitution dealing with the rights of the child.
> ...



Hi Tony

Please keep updated, mine was rejected too

Thanks


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## ernal (Jul 16, 2014)

Legal man just for clarity purpose are you saying if you have lived in SA say on a study visa for over 4 years and you now married to an SA citizen with no spouse visa application done through home affairs just the marriage certificate ( due to existing valid study permit) at hand and you have a child together, you cant apply for a permanent residence through the child?


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## Mikey B (Apr 4, 2014)

Dear LegalMan, My wife and I arrived in S.A. 3 months ago on a 2 yr relatives permit from the u.k. We wish to now apply for PR through the correct channels, we have been advised by the home affairs to renew the relatives permit in 2 yrs, then again 2 yrs later and then apply for PR after being in S.A. over 5 yrs. Our son is a south african citizen earning a high salary and could support us if needed, we have enough money to support ourselves but do not meet the retirement financial criteria. Surely we can obtain a PR permit with supporting documentation from our son?

Kind Regards, Mike (in Cape Town area)


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## LegalMan (Dec 26, 2012)

ernal said:


> Legal man just for clarity purpose are you saying if you have lived in SA say on a study visa for over 4 years and you now married to an SA citizen with no spouse visa application done through home affairs just the marriage certificate ( due to existing valid study permit) at hand and you have a child together, you cant apply for a permanent residence through the child?


You should be able to, but we are currently having issues with Home Affairs saying the child cannot support the PR applicant, which is bizarre. Working against this right now.


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## LegalMan (Dec 26, 2012)

Mikey B said:


> Dear LegalMan, My wife and I arrived in S.A. 3 months ago on a 2 yr relatives permit from the u.k. We wish to now apply for PR through the correct channels, we have been advised by the home affairs to renew the relatives permit in 2 yrs, then again 2 yrs later and then apply for PR after being in S.A. over 5 yrs. Our son is a south african citizen earning a high salary and could support us if needed, we have enough money to support ourselves but do not meet the retirement financial criteria. Surely we can obtain a PR permit with supporting documentation from our son?
> 
> Kind Regards, Mike (in Cape Town area)


Yes, if your son is able to support you then definitely go for PR right away!


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## ernal (Jul 16, 2014)

Thanks Legal Man for your great input as always. Please keep us posted if anything changes. Thanks once again.


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## pb00 (Jun 15, 2013)

LegalMan said:


> Yes, if your son is able to support you then definitely go for PR right away!


Legalman we have already submitted our application through your company using this route in May 2014 and not once was this mentioned, where does this leave us now?


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## LegalMan (Dec 26, 2012)

Please contact whoever in our organisation was/is helping you. At the time of submission, this was clearly not an issue or we would have mentioned it.


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## rainbow84 (Feb 8, 2010)

Unfortunately after jumping though hoops to recover my missing outcome, I got rejected for my application, as my child cannot support me.

I applied before the new ruling.

What are the chances of appealing? How do I proceed and how much will it cost me?
I


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## LegalMan (Dec 26, 2012)

rainbow84 said:


> Unfortunately after jumping though hoops to recover my missing outcome, I got rejected for my application, as my child cannot support me.
> 
> I applied before the new ruling.
> 
> ...


Depending on how the appeal is done, your chances are good. If not successful there you can also take further legal action.


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## rainbow84 (Feb 8, 2010)

LegalMan said:


> Depending on how the appeal is done, your chances are good. If not successful there you can also take further legal action.


Any idea how long is the appeal process? 
Since I applied through Home Affairs, do I appeal there as well? Any link to get me started?
My rejection letter still did not reach the Home Affairs office yet, do I need it or is my Reference number sufficient?


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## ernal (Jul 16, 2014)

Has things changed since the last time or improved regarding this kind of PR


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## LegalMan (Dec 26, 2012)

ernal said:


> Has things changed since the last time or improved regarding this kind of PR


Hi ernal, 

Please could you be more specific when you say last time? 
The act and regulations were last amended on the 22nd May 2014 still stand, until they amend the act or come out with a new directive. 

It is the new regulations that state the SA citizen/PR holder has to be able to support the foreign national.


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## ernal (Jul 16, 2014)

Thanks for the calrity.....that means this kind of PR wont work since most kids are too young to earn the minimum support of 8500 a month.....Has any one have any progress on appeals on this? Cos VFS is still largely accepting these kind of application. Shame but i guess everything you said is right. Thanks for your contribution always.


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## lom (Mar 15, 2012)

Sorry to butt in...but why does she have to wait?
I thought you only had to prove 5 years of relationship not 5 years of marriage for PR?
Surely you can, as you have a 5 year old child to show for?

Please explain how this works..


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## lom (Mar 15, 2012)

LegalMan said:


> Wait and apply through your spouse. The DHA will see a 5 year old child that cannot support his parent.


Sorry to butt in...but why does she have to wait?
I thought you only had to prove 5 years of relationship not 5 years of marriage for PR?
Surely you can, as you have a 5 year old child to show for?

Please explain how this works..


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## Tony556 (Dec 5, 2014)

you can apply for the PR as a spouse if you can prove a 5 year relationship. proving the 5 years with a marriage certificate is obviously easier but you would need more on the life partnership. Your independent evidence plays a big role here.


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## lom (Mar 15, 2012)

Tony556 said:


> you can apply for the PR as a spouse if you can prove a 5 year relationship. proving the 5 years with a marriage certificate is obviously easier but you would need more on the life partnership. Your independent evidence plays a big role here.


Thank you Tony. When applying for trp first time around I had to prove at least 2 years relationship. That was 5 years ago. Surely those docs would work?

What docs would I need further?
We have 2 kids but both little. All accounts plus the house are in his name as I am still only on trp.. Obviously can't have shared bank accounts but I have access to all his. Is that enough proof for joint financial responsibility?

I was hoping to just apply through my kids and have partner sign off financial responsibility.. It has all become very complicated and daunting now again


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## noriki (Jul 14, 2014)

hi lom 
do you guys have a business or property with rent as income ?
you can register it in the kids' name and then they can support you


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## Tony556 (Dec 5, 2014)

Hi Lom.

if you can compile all the TRP permits plus the affidavits you signed over the years that will count. also any travel itinerary generated with both your names on for trips you have had that will also work. you probably have the evidence but you don't realize it yet

Noriki raises an interesting option although i would not go the route of placing the property in the childs name as the issue is still a minor cannot give any form of consent or undertaking. Creating a trust on to act on behalf of the minor would be an option and the trust would the act on behalf of the minor through its trustees. a little over the top and unnecessary especially since you have the Spouse option.


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## Spiggles (Mar 19, 2014)

lom said:


> Thank you Tony. When applying for trp first time around I had to prove at least 2 years relationship. That was 5 years ago. Surely those docs would work?
> 
> What docs would I need further?
> We have 2 kids but both little. All accounts plus the house are in his name as I am still only on trp.. Obviously can't have shared bank accounts but I have access to all his. Is that enough proof for joint financial responsibility?
> ...



Hi lom,

I assume that you have a "Power of attorney" signed for your husband's account as you mentioned that you have access to all his accounts.
I think that will work as proof of shared financial responsibility.
Do you also have an account? If you ever transferred funds between you and your husband, it will also work.

What did you submit as proof of shared financial responsibility for your TR?
You should be able to use that proof again for your PR.

I know it can be very stressing as my wife and I will have to go through the process all over again for her next TR visa(not yet for PR)

Good luck!


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## lom (Mar 15, 2012)

Spiggles said:


> Hi lom,
> 
> I assume that you have a "Power of attorney" signed for your husband's account as you mentioned that you have access to all his accounts.
> I think that will work as proof of shared financial responsibility.
> ...



Thanks for this. 
Yes I have power of attorney and have not bothered to open my own accounts as it is cheaper and more efficient to just use his(ours), 

Don't remember what I did to prove it for TR.. Think I got a statement from the bank stating power of attorney actually...

Worried I can't prove co-habitation as we own a house and ALL paperwork is in his name only. 

Any suggestions further?


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## Jack14 (Oct 26, 2014)

Tony556 said:


> The problem here is that the regulations were poorly drafted. The PR section 27(g) has its equivalent in section 18 temporary residence. In section 18 and relevant regulations there is an exemption provided for when the South African is minor. however there is no exemption in PR but the application form also makes mention of the exemption for PR applications.
> 
> Currently this section is unconstitutional because its irrational and conflicts with a principle refereed to as the principle of legality.
> secondly it is unconstitutional as it goes against section 28 of the constitution dealing with the rights of the child.
> ...


Hi Tonny556

any news regarding the High Court case ?

Regards


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## ernal (Jul 16, 2014)

Yes Tony any update????


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## Nomqhele (Feb 18, 2014)

Avoid using this section if you don't need disappointment


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