Take the necessary steps to prevent being declared an undesirable.
In terms of the Immigration Act 13 of 2002, as amended, a foreign national may be declared undesirable if they have overstayed their visa. In terms of Section 30(2) of that Act “upon application by the affected person, the Minister may, for good cause, waive any of the grounds of undesirability”.
This issue of being declared undesirable was brought into full force and effect together with the gazetting of the Immigration Regulations which came into operation on 26 May 2014.
The Regulations made further provision that the extent of being declared undesirable would be as follows:
– If a person had overstayed their visa by less than or equal to 30 days they would be declared undesirable for 12 months;
– If a person had overstayed their visa for the second time round within a period of 24 months they would be declared undesirable for two years; and
– If a person had overstayed their visa for more than 30 days they would be declared undesirable for five years.
What does being declared undesirable mean? This means that a person is then prevented from being able to enter South Africa again until such time as the duration for which their declaration was issued has lapsed. This determination as to how long the overstay has been is determined and calculated from the date of expiry of the last valid visa held in the individual’s passport.
In practical terms, what happens is that an individual would exit South Africa and upon presenting their passport to an immigration official, the immigration official would confirm to them that they have overstayed their previous visa and by how long they had overstayed their previous visa. They would then be issued with a notice to advise them of their declaration as an undesirable person. This notice would confirm the period they overstayed their visa and the duration of the declared undesirability. Further to that, a stamp would also be placed into their passport confirming the date of their exit from South Africa and their declaration as an undesirable person. Although this is not stamped into their passport in so many words, this specific regulation as per the Immigration Regulations is mentioned. This is then loaded onto the movement control system of the Department of Home Affairs and such individual would not be able to return to South Africa for the prescribed duration.
Under our previous legal dispensation, if a foreign national overstayed their visa in South Africa, upon exiting they would merely be charged an administrative penalty for which the amount was prescribed based on how long they had overstayed their previous visa. Furthermore, if at the time of exiting South Africa the foreign national could show that they had an application pending with the Department of Home Affairs then they would not be charged any administrative penalty and would be free to travel outside of South Africa and back in as may be necessary.
The situation with regard to the amendments and this declaration as an undesirable person now applies regardless of whether any application is pending with the Department of Home Affairs or not.
Upon being issued with a notice of declaration as an undesirable person it must be noted that an individual then has only 10 (TEN) working days within which to file an appeal against this declaration as an undesirable person. The appeal is filed either directly to the South African mission once the individual returns to their country of origin or usual residence or can be filed directly with Head Office of the Department of Home Affairs. Excellent motivation needs to be provided as to why the individual has overstayed their visa and generally the applications that are being dealt with at this stage are those where an individual had an application pending with the Department of Home Affairs at time of exiting South Africa and being declared undesirable.
The problem in respect of this overstay appeal process is that it can take some months, due to the current backlogs, for such an application to be processed through to finality. During this time, the foreign national is not entitled to return to South Africa until such time as the declaration has been uplifted or the duration of time for which the person has been declared undesirable has lapsed.
Indeed applications that are given the most attention at this point in time are those where the foreign national had an application pending with the Department of Home Affairs at time of exiting South Africa or overstayed their visa as a result of medical conditions or reasons. However, these two possibilities do not form a closed list of when an appeal application can be made.
It would certainly be best for foreign nationals in South Africa to begin the processing of the extensions of their visas well in advance of their expiries. It is also advised that if your application for your visa has not been finalised by the time your current visa expires, please do not make travel plans during this time as it may well mean being stranded outside of South Africa unable to return until such an appeal process has been attended to by the Department of Home Affairs.
Julian Pokroy is one of South Africa’s leading immigration specialist attorneys, www.immigration.org.za, and currently heads the Law Society of South Africa’s Immigration and Refugee Law Specialist Committee and the Immigration, Nationality and Refugee Law Committee of the Law Society of the Northern Provinces. He is a member of the South African Law Reform Commission Committee. Tarryn Pokroy-Rietveld is an Attorney at Julian Pokroy Attorneys, Immigration, Nationality and Refugee Law Specialists.
This article appeared in the June 2015 issue of HR Future magazine.