Legalising yourself from within South Africa

SA Migration – 16 January 2023

In the past, prior to the amendments to the Immigration Act, it was possible for an illegal foreigner to “legalise” or “regularise” him/herself from within South Africa by making payment of the requisite fine. This is no longer the case and we are constantly encountering foreigners who find themselves illegally in South Africa with little hope of rectifying their situation.

The current dilemma

In many cases, these illegal foreigners elect to depart South Africa and contest any ban issued to them from outside of the country. This involves the submission of an overstay appeal to the Department of Home Affairs (“DHA”). A number of foreigners, however, simply have too much invested in South Africa and are unwilling to depart the country for fear of incurring a ban that may or may not be overturned.

What your options are

Where an illegal foreigner wishes to “legalise” him/herself from within South Africa, he/she must meet certain criteria in order to do so. For the sake of clarity, “legalising” a foreigner entails applying to DHA for authorisation for the foreigner to remain in South Africa whilst submitting a visa application and awaiting the subsequent outcome. The “legalisation” does not provide the foreigner with the rights attributed to the holder of a specific visa until such visa has actually been issued to the foreigner.

How to get started

In order to qualify for “legalisation”, an illegal foreigner must satisfy DHA that: he/she was unable to submit a visa application timeously for reasons beyond his/her control and; that he/she is now in a position to do so. The latter requirement will be met by providing DHA with proof of a completed visa application containing all the requisite documents. The former requirement, however, is slightly more problematic.

The question of what the phrase “for reasons beyond his/her control” refers to is not clearly answered in the Immigration Act, but it is generally accepted that these reasons include medical grounds and errors on the part of DHA. For example, where an Applicant has applied for a visa timeously, but DHA have subsequently lost the application and the foreigner’s visa has expired in the interim. All of this information will need to be provided to DHA in the form of written representations called an authorisation application. Such applications are commonly referred to as “good cause applications” by DHA officials.

Authorisation applications are assessed on a case-by-case basis and there is a degree of discretion applied by DHA in considering whether additional factors should be taken into consideration. A prominent factor taken into consideration will be whether the foreigner in question is married to a South Africa citizen or has South African children.

A Successful application

If such an application is successful, the foreigner will be provided with a Form 20 (also known as a letter of good cause) which authorises the foreigner to submit a visa application by a prescribed date. This authorisation lapses as soon as an outcome is received in the visa application. If the outcome is negative, the foreigner will need to depart South Africa immediately.

If you require assistance with submitting an authorisation application or would like additional information, kindly contact our offices.

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Relative Visa

SA Migration | 16 Jan 2023

Family members of a South African citizen or permanent resident can apply for a temporary residence Relative Visa if they fall within the first or second line of kinship.

This visa applies to the following:

• Spouses

• Life partners

• Parents

• Children

• Siblings

Life partners (heterosexual or same-sex) of a South African citizen or permanent resident must provide comprehensive and satisfactory evidence that their relationship is at least two years in length to apply for the Relative’s Visa.

Read more about the relative permit and spousal visa

Spouses or partners who want to work, study, or conduct business must apply for a Visitor’s Visa 11.6 (Reside with SAC and work). Notably, this visa is not available to any other relatives.

In the case of dependent family members, the South African citizen or permanent resident must prove their ability to financially care for the applicant. Furthermore, the applicant is not allowed to work and must prove kinship via a birth certificate. For spouses, a financial requirement is not necessary. However, they may be subject to an interview to demonstrate the authenticity of the relationship. You can read a full list of required documents on the visa facilitation website. 

Relatives’ permits are valid for two years and can be extended. For certain immediate family members – such as a spouse or dependent children – the permits are issued free of charge (except for the VFS fee). That said, there is still an additional application fee and different conditions for extended family members wishing to visit South Africa.

Processing time for the Relative Visa is up to 60 working days from the date of submission. The costs depend on the relationship between the applicant and the South African resident or citizen.

Medical Visa

A Medical Visa is required if you enter South Africa on the grounds of seeking medical treatment. The DHA issues this visa for a maximum of six months and only if specific visa requirements are met. Notably, the permit holder is not permitted to work or look for work during this period.

Apart from the typical supporting documents, the applicant must provide a letter from their registered medical practitioner or institution stating:

• The available space in the medical facility

• Estimated costs of the treatment

• The treatment schedule and period of intended treatment in South Africa

• The prognosis

Additional documents include:

• Proof of financial means or health insurance to cover all the medical costs

• Proof of economic independence to cover living costs

• A valid return air ticket

• The particulars of the applicant’s companions (if applicable)

The processing time for a Medical Visa is up to 60 working days from the date of submission, and the costs are R425 for the application fee and R1,350 for the service fee.

Retired Person’s Visa

The Retired Person’s Visa is a temporary residence visa for any person, regardless of age, who intends to retire in South Africa. To qualify for this visa, the applicant must show that they have sufficient financial means to support themselves in South Africa.

To meet the necessary financial requirements, the applicant will need to show that they receive a monthly income of at least R37,000 per month through specific means; such as a pension fund, an irrevocable retirement annuity, a net worth, or a combination of assets.

Business Visa

SA Migration | 16 Jan 2023

South Africa is a country that welcomes much-needed foreign investment. Therefore, a section of South African immigration legislation deals specifically with foreign individuals wishing to conduct business in the country or invest in a South African company.

If you are trying to start your own business, take over an existing business, or invest in a company in South Africa, you need to apply for a Business Visa. Furthermore, you will need to invest a prescribed financial capital contribution, and at least 60% of your workforce needs to be South African.

The capital requirement may be reduced or waived for the following industries:

• Information and communication technology

• Clothing and textile manufacturing

• Chemicals and biotechnology

• Agriculture processing

• Metals and minerals refinement

• Automotive manufacturing

• Tourism

• Crafts

You should also show proof of the following:

• Certification by a chartered accountant of an amount determined by the minister or a capital contribution

• A recommendation from the Department of Trade, Industry and Competition (DTIC) regarding the feasibility of your business plan

• Undertaking to register with an appropriate statutory body, depending on the nature of the business

• An undertaking to register with the South African Revenue Service (SARS)

The processing time is within 40 working days and the cost is R1,520 for the application plus R1,350 for the service fee.

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Non-immigrant South African visas (long-term)

Study Visa

Foreigners who want to study in South Africa, at any level, must apply for a Study Visa before they arrive in the country. This applies even if you are coming to South Africa as the dependent of someone who is coming to work there. International students applying for scholarships in South Africa may also require a study visa first. You can read more about how to apply, as well as the requirements, in our Guide to student visas in South Africa.

Exchange Visa

Young people aged 25 and under can apply for an Exchange Visa in order to participate in economic, cultural, and social exchange programs in South Africa. Notably, these programs must be affiliated initiatives between a South African state body or higher education institution and an international organization or education institution.

The University of Cape Town in South Africa 

It is important to note that these visas are only valid for the duration of the program and cannot be renewed or extended. The documents required depend on the exchange program and the processing time is within 40 working days. You will need to contact the embassy to find out the costs as these can vary.

Work Visas

There are four primary types of work visas available for South Africa, and these depend on the applicant’s situation. You can read more about these in detail in our Guide to getting a South African work visa.

In short, these main work visas are:

• General Work Visa

• Critical Skills Work Visa (GSWV)

• Intra-Company Transfer Visa (ICT)

• Corporate Work Visa

General Work Visa

The General Work Visa is the most common type of work visa for South Africa. To obtain one, the employing company must show documentary proof that they tried to employ a South African citizen first and could not fill the position; for example, showing advertisements of the position in the local media.

Secondly, the applicant must submit proof of their qualifications and experience. The South African Qualifications Authority must also approve their qualifications. General Work Visas are valid for the duration of the contract up to five years.

Critical Skills Work Visa (CSWV)

The South African government considers some skills to be in short supply in the local labor market. This has allowed employers to recruit suitable candidates from abroad who meet these skill-shortage demands. A person with these coveted skills or qualifications may obtain a Critical Skills Work Visa without securing a specific position at the time of application. Having published articles, a doctorate, or being an expert in a field will also strengthen your application.

Some of the skills currently considered as critical are:

• Agricultural engineer

• Boilermaker

• Business analyst

• Financial investment advisor

• Geochemist

• Geologist

• IT security specialist

• Mining technician

• Nursing professionals

• Pressure welder

• Soil scientist

• Urban and regional planner

The most recent list of critical skills catalogues positions that can be filled by formally qualified foreigners who have a minimum of five years of practical experience.

You should be able to provide proof of:

• Relevant qualifications as certified by the South African Qualifications Authority (SAQA), including authenticated copies of academic certifications or degrees; notably, any qualification certificates not in English require a translation from a certified translator

• Registration with the relevant South African professional body, trade organization, board or council, if your field requires such permission

You can find the complete list of conditions for the Critical Skills Work Visa here. The processing time is within 20 working days, and the costs are R1,520 for the application fee and R1,570  for the VFS service fee.

Intra-Company Transfer Visa (ICT)

It is not uncommon for multinational companies to transfer employees between countries. When a person moves to South Africa, they must apply for the Intra-Company Transfer Visa (ICT). Notably, an applicant must have first worked for a minimum of six months in the company’s foreign office before applying to relocate to the South African branch.

An Intra-Company Transfer Visa lasts for four years and is not extendable. Applicants must also apply for a new ICT from their country of origin or permanent residence. The processing time is within 60 business days and the costs are R1,520 for the application fee and R1,350 for the service fee.

Corporate Work Visa

Suppose a business, often in the farming, mining, or engineering sector, needs to recruit a larger number of international workers due to a domestic skills shortage. In that case, it needs to apply with the number of workers required and provide specific job descriptions. The employer must also prove that they could not find employees with the relevant skills in the South African labor market.

If the Corporate Work Visa is approved, then the Department of Home Affairs (DHA) will issue each employee with a Corporate Workers Certificate. The employer will then convert this into a Corporate Workers Visa. This is valid for up to three years in South Africa.

The processing times for Corporate Work Visas is up to 60 days, and the costs are R1,520 for the application fee and R1,350 for the service fees; these are paid by the employer and employee, respectively.

Other visas under the Work Visa category include:

• Treaty Visa

• Volunteer Visa

• Academic Sabbatical Visa

• Research Visa

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Temporary Residence Visa (TRV)

SA Migration | 16 Jan 2023

While processing times for visas under this category vary, they typically take up to 60 business days from the date of submission. However, it can take up to 10 days to process the Visitor’s Visa and Holiday Visa.

When applying for a Temporary Residence Visa, you must meet the following criteria:

• Hold a valid passport with at least two blank pages, which only expires a month after your intended departure date from South Africa

• Ensure your temporary residence permit remains valid

• Submit the online application and required documentation at any VFS.Global visa facilitation center or at the South African embassy in your country of residence or citizenship

• Provide a yellow fever vaccination certificate (when applicable)

The following supporting documents are not required for the Visitor’s Visa but all other Temporary Residence Visas:

• Radiological and medical reports

• Biometrics

• Criminal clearance certificates (not older than six months)

• A completed BI-1738 form (not applicable for a Visitor’s Visa)

Discover the 10 most beautiful places to visit in South Africa

You can follow this simple step-by-step guide on how to apply for this visa. Notably, it is possible to transfer or rectify a Temporary Resident Visa in the case of damaged, lost, or stolen passports, but only if the passport is still valid.  

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Non-immigrant South African visas (short-term)

Visitor’s Visa (Holiday/Tourist Visa)

Tourists wanting to visit South Africa can apply for a Visitor’s Visa, which allows them to enter the country for a maximum of 90 days.

Currently, 52 nationalities can enter South Africa visa-free for up to 90 days, and another 28 nationalities are exempt from visas when visiting for a maximum of 30 days. You can find the full list of visa-exempt countries here. Processing times typically range between five and 10 days, but applicants are advised to apply well in advance in order to avoid delays. The costs include an application fee of R425 and a service fee of R1350. 

While they are in South Africa, tourists can extend their Visitor’s Visa at a visa facilitation center or through a registered immigration practitioner 60 days before the visa expiration date. Just be aware that renewal is not automatic and may not be the same duration as the original visa. Because most visitor visas are only granted for single entries, you will need to lodge a new application to enter again, once you have left the country. You will also need to leave the country and apply from your country of residence if you want to switch to another type of visa.

Other types of long-term visitor visas

Under the Immigration Act, there are 12 additional long-term visitor visas on offer for purposes other than tourism. These are as follows:

• Academic sabbaticals

• Voluntary or charitable activities

• Research (includes visiting professors and lecturers)

• Accompanying spouses and children of temporary residence visa holders

• Teachers at international schools

• Film and television crews and actors

• Foreign journalists working for a foreign news agencies

• Artists who wish to write, paint or produce sculptures

• Foreign entertainers on tour

• Tour hosts and leaders

• Foreigner (state) witnesses testifying in criminal court cases

If you wish to apply for one of these visas, you will need to present the following documents:

• A valid passport with at least two blank pages; expiring no less than a month after your intended departure 

• A return air ticket

• Proof of sufficient funds for the duration of your stay

• Proof of host address or hotel reservations 

The new South African Electronic Visa (i.e., holiday or visitor’s visa) has been trialed with visitors from Kenya and India and is expected to be launched and available to nationals of 14 countries in 2022.

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Who needs a South African visa?

SA Migration | 16 Jan 2023

Anyone traveling to South Africa will need a visa to enter the country; be it for a holiday, visiting family, joining a partner, living, working, or studying. However, some countries are exempt from this rule.

When traveling with a child under 18, you should always check the current South African visa requirements and child policy as these sometimes change. From 8 November 2019, for instance, foreign children traveling with their parents no longer need to present parental consent letters or birth certificates. Nonetheless, it can’t hurt to keep a parental consent letter and birth certificate handy just in case.

Essentially, an applicant’s nationality and reason for entering South Africa determine the type of visa they require. Applicants must also petition in person and supply supporting documents, such as medical and biometric data, a passport valid for at least one month after leaving South Africa, and financial records.

If you reside outside of South Africa, you will need to book an appointment at the embassy or consulate in your country of citizenship or residence. However, if you are already in South Africa and want to apply for a different visa or extension, you must book an appointment at one of the visa facilitation centers which are managed by VFS.Global. It is also critical to stay updated with the latest travel restrictions to South Africa concerning the current global COVID-19 pandemic.

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Types of South African visas

Visas for South Africa are categorized under two main branches: Temporary Residence Visa (TRV) and Permanent Resident Permit (PRP).  

The type of visa you require, as well as the documents, costs, and processing time, will depend on your reason for entering South Africa, your nationality, and at which consulate or embassy you apply. And because processing times can vary between consulates and may often take longer than expected, it is advisable to apply for your visa well in advance.

The Temporary Residence Visa (TRV) is broken down into several categories based on different reasons for entering South Africa. These are as follows:  

• Visitor’s Visa: for tourism purposes of no longer than 30 or 90 days

• Business Visa: allows a person to enter the country for up to 90 days to work or invest in the economy

• Study Visa: allows a person to study on a primary, secondary, or tertiary level for the duration of the course

• Exchange Visa: for applicants who are 25 years old or younger wanting to participate in cultural, social, or economic exchange initiatives

• General Work Visa: allows entry to a person with specific, in-demand skills for the duration of their work contract

• Relative Visa: immediate family members of South African citizens or residents can apply to stay in South Africa for a maximum period of two years at a time

• Medical Visa: allows a stay of six months for medical treatment

• Retired Person’s Visa: pensioners with the financial means can apply to retire in South Africa

You can find a more detailed explanation of the numerous types of visas and permits for South Africa further down this guide.

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