The implementation of the amended Immigration Act 13 of 2002 (“the Act”) has seen sweeping changes across the field of immigration law in South Africa. This article will look to provide clarity around the issue of foreigners being declared an “Undesirable Person” in South Africa.
What is an “Undesirable Person” in South Africa?
According to South African Immigration law, a foreigner may be declared undesirable by the Director-General of Home Affairs if he or she has overstayed his or her South African visa.
What does declaration of undesirability mean?
A declaration of undesirability effectively prevents you from applying for a visa and re-entering South Africa for the prescribed periods of time, as set out below:
- If you have overstayed by less than 30 days, you will be declared an undesirable person for a period of 12 months;
- If you have overstayed for a second time within a 24 month period, you will be declared undesirable for a period of 2 years and
- If you have overstayed by more than 30 days, you will be declared undesirable for a period of 5 years.
Current policy on undesirability in South Africa
Confusion often arises when foreigners who have already submitted their visa/permit applications have attempted to return to their home nations prior to the finalisation of their application and have been declared undesirable upon departure. In the past, a foreigner who had submitted an application for the extension of his or her temporary residence Permit was not to be penalised when entering or leaving South Africa – provided that he or she held the original acknowledgement of receipt and proof of payment. However this is no longer the case.
The change in policy has effectively stripped foreigners of both their right to remain in South Africa pending an outcome in their application, and their ability to depart South Africa during this period without being penalised. This change has been poorly publicised and consequently, many foreigners have attempted to depart the country only to be declared an undesirable person upon doing so.
The current issue with foreigners labelled “Undesirable Person”
The issue is only compounded by the delays and backlogs encountered through the Department of Home Affairs, essentially stranding foreigners in the country until they have received an outcome on their applications. In the event that you are required to travel out of South Africa and you are declared undesirable, you have 10 working days within which to submit written representations appealing the decision. These representations are to be submitted to firstname.lastname@example.org and it is advisable to enlist the services of an immigration attorney to assist in this regard.
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