By Niki Gerneke, Head of Immigration Law, Corporate & Commercial department
A Bill amending Section 32 of our Immigration Act 13 of 2002 was passed before Parliament on 19 May 2016.
Prior to the amendments to the Immigration Act of May 2014, foreigners who left South Africa after the expiry of their permits were liable to pay an administrative fine upon leaving the country. Section 30 of the Act was introduced in 2014 because the government felt that these administrative fines were not enough of a deterrent to foreigners overstaying as, after the paying the fines, the foreigners would simply return back to South Africa.
Section 30 declares such foreigners “undesirable” if they overstayed on their visas and banned them from returning to the country for:
A period of 12 months if the foreigner has overstayed on their visa less than 30 days;
For 2 years for those overstaying more than once in a two-year period; and
For 5 years if the foreigner overstays for more than less than 30 days.
In practise these bans have generally been imposed on foreigners when leaving the country, at our ports of exit.
Section 30 in addition provides a number of different instances in which a foreigner “may” be declared an undesirable, which in practise renders them unable to qualify for a port of entry visa; any temporary residency visa; admission into South Africa; or permanent residency in South Africa, whilst their status remains “illegal”.
Section 30(1)(h) refers to “any person who has overstayed the prescribed number of times” being liable to be declared “undesirable” and therefore “illegal”. The Section has over the past two years been interpreted to mean that foreigners must have overstayed in South Africa on more than one occasion in order to be declared “undesirable”. The intention of the legislators has apparently always been for Section 30(1)(h) to declare a foreigner “undesirable” even upon one instance of overstay.
The purpose of the latest Bill is to clarify this intention. Foreigners who become “illegal” by virtue of having “overstayed” on their temporary residency visas, only once, need to legalise themselves in terms of Section 32(1) of the Immigration Act in order to remain in the country.
In terms of Section 32(1) “Any illegal foreigner shall depart, unless authorised by the Director-General of Home Affairs in the prescribed manner to remain in the Republic pending his or her application for a status.”
The procedure therefore for a foreigner who overstays merely once on their temporary residency visa, is for them to apply to legalise themselves in terms of section 32(1). This application is accompanied by an application to regain or apply for their immigration status in the country. In addition, the Director – General of Home Affairs may, upon application by the illegal foreigner, waive such a disqualification where exceptional circumstances exist.
For any queries on the above, please contact:
Head of Immigration Law
Corporate & Commercial department
+27 71 148 7724