Home Affairs attempting to further clamp down on foreigners overstaying on visas

By Niki Gerneke, Partner, Immigration Practice Area in Corporate & Commercial Department

The Portfolio Committee on Home Affairs on 18 November 2015 applied for permission to introduce another amendment to our Immigration Act, which will provide stronger penalties to foreigners who have overstayed in the Republic beyond the expiry date on their visas. The agenda now appears to be to moving in the direction of preventing these foreigners from acquiring a port of entry visa, a visa for admission into the Republic and/or a permanent residence permit for a prescribed period of time. We are waiting to hear of how long the moratorium on such foreigners is proposed to remain.

Our current legislation provides in Regulation 27 that a foreigner may be declared "undesirable" for a period of 12 months if he or she overstays for a period not exceeding 30 days. A foreigner who overstays for the second time within a period of 24 months, may be declared undesirable for a period of 2 years. In the case of a foreigner who overstays for more than 30 days, they will be declared undesirable for a period of 5 years.

The stipulations in Regulation 27 are premised on the content of Section 30(1)(h) of the Immigration Act, which makes reference to a foreigner being declared "undesirable" where he or she has overstayed "the prescribed number of times". The Portfolio Committee believes that Regulation 27 is not clear enough on this point. They say that some foreigners have interpreted it to mean that they must have overstayed on more than one occasion in order for the consequences of undesirability to be visited on such person. My interpretation, however, is that a foreigner may be declared undesirable even upon one instance of overstay. This discretion is in the hands of the immigration official who waives the foreigner a less than fond farewell at his or her port of departure.

To my mind when someone is declared undesirable they are in any event prevented from returning to the Republic until the undesirable status is lifted, which amounts to the same outcome as what the Portfolio Committee wants to achieve.

The Portfolio Committee believes that the amendment is necessary because foreigners are not taking Section 30(1)(h)  and Regulation 27 seriously. Practically speaking, however, foreigners who apply for a lifting of their undesirable status to allow them to return to the Republic are being forced to wait for months and months whilst being subjected to insane levels of red tape frustration, before their status is amended, if at all. By then, these foreigners have lost their belief that our country may be the land of milk and honey, and have moved on to spend their money in a land with greener pastures, which subject their foreigners to far more relaxed and welcoming immigration laws.

For more information contact: Niki Gerneke, Partner, Immigration Practice Area

021 419 6495, gerneke@wylie.co.za