Immigration and the right to respect for family life in the European context : a reflection on the states' positive obligations and possible lessons for South Africa : note

• Date: 01 January 2015
• DOI: 10.10520/EJC182692
• Published date: 01 January 2015
• Author: A. Van der Linde
• Pages: 438-455

438 2015 De Jure

will apply notwithstanding the fact that there is no likelihood of confusion

or deception or that the existing concept has not been generally exposed.

Rule 9.2 determines that in considering international campaigns,

consideration will be given to, inter alia, the undue imitation thereof by

local advertisers. The condition is, however, that the advertiser must be

committed to start trading in the local market within a reasonable period

of time. This provision could thus provide protection where a trade mark

has appeared in an advertisement, also overseas.

7Conclusion

It appears that although use of a scope not amounting to the existence of

a reputation does not provide extensive rights, there are certain contexts

in which protection might be possible nevertheless. In statutory law,

certain rights are given in terms of the Trade Marks Act. Then, again, the

CPA grants protection, also in the form of a statutory type of prohibition

of passing off. This might be relevant to the business not yet fully in the

market. Similar provisions are found in the Companies Act. Lastly it was

noted that the ASA Code might be effective, even if the particular

advertisement was shown overseas. In conclusion therefore, there are

some rights that attach to a trade mark application, or a trade mark the

subject of an application, and the picture is not as bleak as it might seem

at first.

W ALBERTS

University of Johannesburg

Immigration and the right to respect for family

life in the European context: A reflection on the

states’ positive obligations and possible lessons

for South Africa

1Introduction

The former Aliens Control Act 96 of 1991 has been repealed by the

Immigration Act 13 of 2002(s 54), which commenced on 12 March 2003.

On 26 May 2014, amendments to the Immigration Act 13 of 2002

effected by the Immigration Amendment Act 3 of 2007 (GN 656 in GG

30095 dated 18 July 2007) and the Immigration Amendment Act 13 of

2011 (GN 690 in GG 34561 dated 26 Aug 2011) as well as the Regulations

were implemented (GN R413 in GG 37679 dated 22 May 2014). With

regard to the issuing of permanent residence permits to a foreign spouse

of a South African citizen or permanent resident under the former and

How to cite: Van der Linde ‘Immigration and the right to respect for family life in the European context: A

reflection on the states’ positive obligations and possible lessons for South Africa’ 2015 De Jure 438-455

http://dx.doi.org/10.17159/2225-7160/2015/v48n2a10

Aantekeninge/Notes 439

now repealed Aliens Control Act, two aspects earlier came under scrutiny

in the case of Dawood, Shalabi and Thomas v Minister of Home Affairs

(2000 1 SA 997 (C), 2000 3 SA 936 (CC)). The first aspect related to a non-

refundable fee payable by foreign spouse applicants for immigration

permits (now permanent residence permits). The second issue

concerned section 25(9)(b) of the Aliens Control Act and, in particular,

the question whether it was constitutional to require that an immigration

permit could be granted to the spouse of a South African citizen who is

in South Africa at the time only if that spouse is in possession of a valid

temporary residence permit. Both aspects were declared to be

inconsistent with the Constitution and thus invalid (see the discussion in

par 4 3 below). The applicants, whose temporary residence permits had

expired, were therefore entitled to remain in South Africa pending the

finalisation of their application for an immigration permit. Important to

note for purposes of the discussion below, however, is the fact that when

they got married, all three applicants were in the Republic legally. When

initially they applied for permanent residence permits, they were in

possession of valid temporary residence permits.

Conversely, a recent judgment by the European Court of Human

Rights (‘ECtHR’) in Jeunesse v The Netherlands (appl no 12738/10 of 2014-

10-03), involved an application for permanent residence in the

Netherlands by an applicant who was illegally present in the Netherlands

for a number of years, on the basis of her family life in the Netherlands.

The existence of ‘family life’ within the context of article 8 of the

European Convention on Human Rights (‘ECHR’) between the applicant,

her husband and three children was not disputed. The pertinent

question, however, was whether the Dutch authorities were under a

positive obligation to allow her to reside permanently and therefore to

grant her a permanent residence permit in the Netherlands for the

purpose of enabling her to enjoy and exercise family life with her

husband and children on their territory (par 85).Article 8 of the ECHR

reads as follows:

(1) Everyone has the right to respect for his … family life, …

(2) There shall be no interference by a public authority with the exercise of

this right except such as is in accordance with the law and is necessary in a

democratic society in the interests of national security, public safety or the

economic well-being of the country, for the prevention of disorder or crime,

for the protection of health or morals, or for the protection of the rights and

freedoms of others. (emphasis added)

This contribution reflects on the valuable general guidelines provided

by the ECtHR on immigration matters in the European family and

humanitarian law context. The application of these guidelines by the

ECtHR to the facts at hand in Jeunesse is mentioned. Special attention is

drawn to the exceptional facts and circumstances of the case that led the

ECtHR to deviate from the general guidelines and to find a violation of

article 8 of the ECHR by the Dutch authorities. The opportunity is then

used to briefly investigate the position in South Africa. The Immigration

Act and the question whether and how the judgment by the

How to cite: Samuels ‘Note on the use of the public nuisance doctrine in 21st century South African law’

2015 De Jure 181-192

http://dx.doi.org/10.17159/2225-7160/2015/v48n1a11