Immigration Law Update: “Valid” Visas in Expired Passports

On Wednesday 15 February 2017 we received an unsigned circular which we believe was produced by the Department of Home Affairs (DHA), and which dealt with the rectification of temporary residency visas and the transfer of temporary residency visas from one passport to another.  The circular was badly drafted, and appeared to record that temporary residency visas issued beyond the date of the expiry of a foreigner’s passport will lapse when the passport expires, and that this DHA policy would come into effect, immediately.

The DHA sought to justify the circular based upon an interpretation of Immigration Regulation 2(3) and Section 48 of the Immigration Act 13 of 2002:

  •  “the period of validity of a passport contemplated insection 9(4)(a) of the Act shall not be less than 30 days after the foreigner’s intended date of departure from the Republic”.

  • no illegal foreigner shall be exempt from a provision of this Act or be allowed to sojourn in the Republic on the grounds that he or she was not informed that he or she could not enter or sojourn in the Republic or that he or she was admitted or allowed to remain in the Republic through error or misrepresentation, or because his or her being an illegal foreigner was undiscovered”.

It seemed that the DHA’s stance was that their policy is in line with the Act and its Regulation and therefore should not come as a shock. The issuance of visas which extend past the expiry date of a passport was never intended to be allowed in the first place. Any issuance thereto was  done in error, and should never have been allowed.  

On 21 February 2017 we were then advised by the DHA that the circular should be “ignored”. It is apparently being “scrapped”, and a new document would be issued “soon”. Until further notice we are “to proceed on the basis that temporary residency visas issued with expiry dates after passport expiry dates remain valid”.

What this information indicates is that temporary residency visa’s going forward will most probably not be granted in excess of the expiry date of a foreigner’s passport (this is in line with our current legislation). Foreigners are to take this into account when making travel plans to come to South Africa and/or remain here. It is possible that the circular was issued to test the waters, in particular the extent of the public outcry if the policy was to come into effect immediately upon the issue of the directive. Besides the moral and constitutional issues in doing so, if the DHA proceeds with the new policy then practically speaking temporary residency visas will only be eligible for insertion into new passports once old passports have expired. To achieve this, applicants will need to undergo another application process, but they can only do this once their new passports have been issued. This will create havoc with applicants who are relying on a continuous temporary residency visa status to apply for permanent residency, and also with family members who are dependent on these applicants to remain legally in the country. My feeling is that the new policy is going to be difficult to apply to expired passports. If the DHA insists on pushing forward, it should avoid retracting existing temporary residency visas, alternatively give these temporary residency visa holders a grace period within which to sort out their temporary residency visa/passport situations.

In the meanwhile, all remains as it did previously.

For more information on the above contact

Niki Gerneke, Partner

+27 71 148 7724

gerneke@wylie.co.za