By Jennifer Woker, Senior Associate in the Litigation department at Shepstone & Wylie Attorneys
On 26 September 2016, the Department of Home Affairs amended South Africa’s immigration legislation to create more stringent penalties for foreigners who over stay on their issued visas.
These foreigners have visas that have expired, and they have remained on in the country with no visa application pending at the Department of Home Affairs.
South Africa’s immigration policies are regulated by the Immigration Act of 2002 (‘the Act”) read together – until recently – with the Immigration Regulations of May 2014 (“the Regulations”). Before the September 2016 amendment, a foreigner was declared an “undesirable” and therefore rendered “illegal” in the country upon departure if they had remained in South Africa one day past the expiration of their visa. If the foreigner overstayed by less than 30 days, they would be declared “undesirable” for a period of 12 months. If they overstayed for more than 30 days, they were declared an undesirable for a period of 5 years. If the foreigner received “undesirable” status, they could appeal via email to the Director-General of Home Affairs, failing which they could lodge an appeal via email with the Minister of Home Affairs.
The immigration officers at all of South Africa’s ports of exit then embarked upon a ruthless declaration of all foreigners who overstayed as undesirables.
On 26 September 2016, the Department of Home Affairs amended Section 32 of the Act to decree that if a foreigner is declared an “illegal” occasioned by him being “undesirable”, that foreigner will not be granted a new visa (of any kind) until the 12 month or 5-year period has run its course. The person deemed to be an illegal foreigner may approach the Director General on application for a waiver of their “illegal foreigner” declaration and, if exceptional circumstances exist, their ban may be lifted earlier than 12 months or 5 years. In terms of Section 50 of the Act, if a foreigner’s visa has expired and they leave the country thereafter, they will be declared an “illegal foreigner” and will not be entitled to any kind of visa to re-enter South Africa until the 12 month or 5-year period has expired. They still retain the right to appeal the ban via email to the Director-General of Home Affairs, failing which they can still lodge an appeal via email with the Minister of Home Affairs. As with before, expect the processing of these appeals however to take a long, indeterminate amount of time to process, so it is best that a foreigner does not allow thei visa to expire.
Foreign Visa holders should, however, take note that, as a general rule, if they apply for an extension of their visa from within South Africa – before their visa expires – and it expires whilst they are awaiting the outcome of their application, they may remain in the country pending the outcome of their application. If they chose to leave South Africa during this process, they will most probably be declared “undesirable” at our port of exit.
For any queries on the above, please contact:
Senior Associate in the Litigation department
Shepstone & Wylie Attorneys
+27 79 504 1576