South African immigration issues and bans aren’t something you’ll often hear about in the press with many cases resolved rather swiftly. In the past those who have been found liable due to indiscretions are often resorting to simply paying a fine if they find themselves overstaying on their limited duration visas, the new amended act has changed this protocol.
However, there have been amendment changes since then and depending on when last you’ve been to South Africa or if its your first time visiting you need to be aware of these changes. The amended South African Immigration Act No. 13 of 2002 came into effect on 26 May 2014 and with it came specific changes within the field of immigration law.
The amended Act has declined foreigners this option of merely paying a fine has decided that those with expired visas will be declared undesirable upon departure from South Africa. This results in a ban from travel to South Africa of up to 5 years, depending on the duration of the overstay.
While the Act considers anyone not in possession of a valid visa to be an illegal foreigner, many foreigners choose to risk remaining in South Africa hoping for a successful visa application will arise. Additionally, foreigners choose to remain in South Africa due to being employed by South African companies. However, some applications are rejected, and this lead s to foreigner becoming illegal employed and leaves all parties in a hazardous situation
What does the Act state:
- It is essential for all companies to ensure that their employees hold valid work visas for the duration of their employment.
- Requires employers to make a good faith effort to determine that no illegal foreigners are employed by them.
- Provides for heavy fines and even terms of imprisonment for employers who knowingly employ illegal foreigners.
- Additionally, if an illegal foreigner is found on the premises of a company, it is presumed that such a foreigner is employed by the company unless sufficient evidence to the contrary is presented.
- Thus, even in instances where a foreigner has become illegal as a result of a delay in the finalisation of a visa application, it is in the best interests of all parties for the Applicant to cease work and where required, depart South Africa.
Now that we have looked at what the act states, let’s delve deeper into what could cause foreigners to receive these bans.
Visa overstays result in long bans
If a foreign national overstay for a period of fewer than 30 days, he/she will be banned for a period of 12 months and given the position of an ‘undesirable person’. An overstay that goes beyond 30 days leads being banned for a period of 5 years from South Africa. Additionally, the individual may only re-enter after the expiration of the stated period.
The 2014 Amendment and Directive 9 endorse the position of Regulation 27(3) about Section 30(1) (h). These legislative provisions provide that, even if a foreign national submitted an application for an extension of an existing visa, where that visa expired after submission thereof, such persons can and will be declared as undesirable. Grounds for declaring a person undesirable may vary and is not exhaustive.
Factors that may influence a decision
The formal appeal process provides the aggrieved person with an opportunity to persuade why the status of undesirability should be removed and the ban is lifted. One has to deliver substantial reasons to motivate the change of his/her immigration status in South Africa.
Various factors may be taken into account for written representations, such as:
- A foreign national visiting a spouse, child, parents or dependent minor/relative in South Africa,
- A pending application for a temporary or permanent residency, employment contract, studies and medical conditions.
- Any personal circumstances that may support one’s appeal to be successful.
While these are favourable factors, there are factors that may negatively affect one’s appeal application such as A previous incident of overstay or any serious medical condition that may have dire consequences.
Despite the fact that these factors may be taken into consideration, an appeal may or may not have a successful result.
Foreign nationals must apply for visa extension 60 days before the expiry
It is important to note that the court states that foreign nationals who seek to extend their existing visas must ensure that such applications are made at least 60 days before termination of their existing visas. Failure to do so may result in such foreign nationals being declared as ‘undesirable’ persons.
Appeal for overstay to the Department of Home Affairs
Any person distressed by these new laws, whether it is a local citizen or a foreign national, can go to the Department of Home Affairs using an appeal process. It is generally referred to as an ‘Appeal for Overstay’.
If you have been professed as undesirable, you can apply to have the status appealed within a period of 10 days. Subsequently, the department will attend to your appeal within 48 hours. However, there is no guarantee that the matter will be dealt with according to the time frame indicated by the department, as immigration-related matters can become time-consuming.
If the appeal is successful, a waiver will be issued to the foreigner permitting them to return to South Africa with immediate effect. It is advisable for employers to recommend this route to any employees who find themselves illegally resident in South Africa.
How to deal with your possible ban
The most common reason for this ban is when no outcome has been received regarding the date of expiration of your visa when applying for a new visa application or an extension/renewal of an existing visa from within South Africa; you now know why this occurs.
Now that you are equipped with this knowledge you can avoid this time-consuming & stressful process. However, if you find yourself in this predicament or unsure on which side of the law you’re on, we are here to help you every step of the way!
Speak to a professional
We can help you with all Visa Applications in South Africa. We also feature a Free Online Assessment to help you determine your current status and which steps to take next. Contact Le Roux Attorneys today to assist you in applying for having a ban overturned
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