A Relative's Visa

may be issued by the Department to a foreigner who is a member of the immediate family of a citizen or a resident, providing that such citizen or resident provides the prescribed financial assurances.

This only applies to first level of kinship i.e: Brother, Sister, Mother, Father.

The period of validity of the Visa shall be determined by the financial assurance provided, but will not exceed a period of 24 months at a time. A relative Visa issued to a spouse shall lapse upon the dissolution of the spousal relationship and the Department may at any time satisfy itself that a good faith spousal relationship exists and or continues to exist.

Let SA Migration Intl handle your entire case from filling out the documentation to processing the application.

www.samigration.com

THE CONSEQUENCES OF OVERSTAYING YOUR VISA

 SA Migration - 16-03-2022

Section 30(1)(h) of the Immigration Act of South Africa and Regulation 27(3) of the Immigration Regulations.

A person will be declared ‘undesirable’ and will receive a ban regardless of the reason for the

overstay. The ban applies to any person who has overstayed, adults and children. The ban and

being declared ‘undesirable’ also affects people who leave South Africa while their application for

a visa (or visa extension) is pending, if their current visa has expired.

 

what happens if i overstay my visa?

 

In 2014, the Department of Home Affairs introduced new immigration regulations, which

effectively 'ban' foreign nationals who overstay in the Republic from re-entering South Africa for

a set period of time.

The immigration laws in South Africa state that a person who overstays in the Republic after the

expiry of their visa will be declared as 'undesirable'. This person would receive a document,

confirming them to be an 'undesirable' person, when they exit South Africa. Their passport is also

stamped. The document 'bans' them from re-entering South Africa. The length of time that you

are banned for depends on how long you have overstayed your visa.

Persons who overstay their visa for a period of less than 30 days will be declared

‘undesirable’ and banned for a period of 12 months. This means that this person will not

be allowed to re-enter South Africa for 12 months.

Persons who overstay their visa by more than 30 days will be declared ‘undesirable’ and

banned for a period of 5 years. This means that this person will not be allowed to reenter

South Africa for the next five years.

If you hold a visa issued by the South African Department of Home Affairs, you must always check and

be aware of the visa expiry date. If you are staying in South Africa longer than the validity of your visa,

you must apply for a renewal of the visa 60 days before the visa expires, or you must leave the country

before the expiry date. Failure to do so has severe consequences. This is set out in South Africa's

Immigration Act.

 

WHAT CAN I DO IF I RECEIVE A BAN?

 

You are able to appeal a ban. The Immigration Act allows for people to lodge a formal appeal

request to the Department of Home Affairs if they have been declared ‘undesirable’ and received

a ban. The appeal must be submitted within ten working days of the day that you received the

ban. To submit an appeal, you must email your request to the Department of Home Affairs,

Written representations/letter with clear reasons for overstay,

A copy of the document declaring you 'undesirable' (you would have received this at

the border upon leaving South Africa, and a stamp in your passport),

A copy of your passport: the information page and other relevant pages, such as

pages with your South African visa(s), stickers or stamps,

If you had applied for a visa extension, also include the acknowledgement of receipt

of that application,

A medical certificate if you overstayed due to medical reasons and

Any other relevant documents that support your written representations (including

documentary evidence proving your reasons for overstaying.

For confirmation that the appeal has been received, you should contact IMS

 

how can i avoid receiving a ban?

 

You can avoid receiving a ban by lodging your visa renewal application 60 days before the expiry

of your current visa. If possible, we advise that you submit your application 90 days before your

visa expiry date so that the Department of Home Affairs has enough time to look into your

application. (You cannot submit the application six months before the expiry of the current visa,

however.) If your visa has expired and your application for extension is still pending, do not leave

South Africa unless travel is absolutely necessary. Contact a reputable immigration advisor or

attorney should you have to travel.

 

My ban has finished - can i return to south africa?

 

No You can only return to South Africa once you have applied to the South African Department of

Home Affairs for the ban to be lifted as it is not automatically removed from the system. You must

apply for the ban to be lifted. If you do not, you will be refused entry into South Africa at the Port

of Entry. You can make this application at the email address provided above. It is also advisable to

speak to your local South African consulate/embassy.

 

HAS THE COVID-19 PANDEMIC IMPACTED THIS?

 

During the Covid-19 pandemic, the South African government implemented a nationwide

lockdown as well as a closure of its borders. This meant that many people were unable to return

to their country of origin before their visas expired.

The Department of Home Affairs issued Directions specifically for people whose visas expired

during the National State of Disaster, from 15 March 2020. These Directions state that if your visa

expired from 15 March 2020 and you remained in the Republic during the period of the national

state of disaster, you will not be declared an undesirable person and you should not receive a

ban when leaving the country up to and including 31 July 2020.

Any person who did receive a declaration of undesirability during this period, should have that

ban set aside. You should contact the email address provided above to clarify this situation and

ensure that any ban that may have been noted, is removed.

For reliable information on the Covid-19 virus,

 

visit

www.samigration.com

 

 

Aaron Motsoaledi says almost 4 million foreigners live in SA

16 Mar  2022 – IoL

Home Affairs Minister Aaron Motsoaledi says they are trying to clamp down on illegal foreigners through their inspectorate, but statistics show there are close to 4 million foreigners in the country.

Motsoaledi said the inspectorate had been able to deport 14 113 undocumented foreign nationals between April and December last year.

This followed 211 inspections in the country.

But during another operation on the borders between January last year and this January the department deported 14 337 people who were trying to get into the country illegally.

“During law enforcement borderline operations conducted during the festive period the department deported 14 337 persons attempting to enter the country illegally,” said Motsoaledi, who was replying to a written question in Parliament from Liezl van der Merwe of the IFP.

However, Motsoaledi said he did not know how many foreign nationals were in the country illegally.

He said there were various figures on the number of people in the country illegally, but the figures differ.

“The government does not have a precise number of the number of undocumented immigrants in Republic due to the clandestine nature of the act of being here illegally.

“A number of persons entered without being recorded on any system and live here as unrecorded.

“Different studies have given different figures which are unverifiable from 3 to 6 million plus.

“However according to figures from Statistics SA, a figure of 3.95 million foreign nationals are in South Africa according to their mid-year population estimates in 2021.

“This figure includes foreign nationals regardless of status,” said Motsoaledi.

www.samigration.com

 

 

Entry Denied at Port of Entry- What are your rights in South Africa?

Sa Migration – 16 March 2022

South Africa is the destination of choice for many people from the continent and the world.  As a result of this the country’s ports receive millions of travellers annually entering for various reasons. However, on occasion a traveller is refused entry having been deemed ineligible for entry into the Republic for one or more reasons. Often persons who find themselves in this position are summarily sent back to their country of embarkation without being informed of their rights if any under our law and how to exercise these rights. In this week’s piece we will explore what the Immigration Act provides for persons in this position as well as what our courts have concluded in cases involving persons who have been refused entry.

Section 8(1) of the Immigration Act regulates what happens to a person who has been refused entry at a port of entry.  Section 8(1) provides “An immigration officer who refuses entry to any person or finds any person to be an illegal foreigner shall inform that person on the prescribed form that he or she may in writing request the Minister to review that decision and-

1. a) If he or she arrived by means of a conveyance which is on point of departing and is not call at any other port of entry in the Republic, that request shall without delay be submitted to the minister; or
2. b) in any other case than the one provided for in paragraph (a), that request shall be submitted to the minister within three days after that decision.

Two key rights are expressed in this section, the first one is the right to be notified of the reasons for being denied entry and secondly the right to make an appeal to the Minister to review the decision. The Act also makes provision for a time frame of when the appeal should be made in these two instances when entry has been refused.   The first arises when the conveyance is set to depart and will not call upon another port of entry in which case that appeal must be made immediately. The second instance is when conveyance is not at the point of departing, in which case the appeal must be made within three days from the act of being refused entry.

In section 8(2) the Immigration Act goes on to provide that if any person is refused entry or found to be an illegal foreigner as contemplated above, who has requested a review of such decision but is on a conveyance that is set to depart as contemplated in section 8(1)(a) shall depart on that conveyance and shall await the outcome of the review outside the republic. In a case arising under section 8(1)(b) , where the conveyance is not at the point of departure and the person has lodged an appeal with Minster the Act provides that this person  Shall not be removed from the republic before the Minister has confirmed the relevant decision. Here is where the problems tend to begin, firstly most are not informed of their rights as required by the Act but where they are informed there seems to be a concerted effort by the Immigration officials to secure the immediate removal of the person notwithstanding the protections afforded to the person.

The right to review and to reasons are hallmarks of our administrative law and are enshrined in the section 33 of the Constitution which vests everyone who is at the receiving end of an adverse decision by the state the right to appeal that decision and the demands that the public official must provide reasons of their decision in writing.  Our law recognises that the right to Just administrative action has two key aspects, the first one being the substantive aspect encapsulated in the statement the administrative action must be lawful or put differently it must be in line with an empowering legislation and the constitution. The second relates to the procedural fairness, the conduct or act must conform to procedural prescripts of the Act. Meaning where the Act says the official must inform the person by issuing a form 1, the failure to issue that form renders the action unlawful.

In the past when Home Affairs has been challenged on actions its officials have taken to deny a person entry they have put forward two principal arguments, first that have stated that once they have denied some one entry that person is no longer their responsibility but that of the conveyance as contemplated in section 35(10) of the Immigration Act.  The have also argued that technically persons in the arrivals area at the port of entry who have not been formally admitted into the republic are not in the republic and therefore not subject to the protections afforded to them by the Act and the constitution.  A final argument has been that in cases where a person has lodged an appeal in terms section 8(2)(b) wherein the Act provides that person shall not be removed from the republic, that person is not deprived if freedom as contemplated in section 12 of the constitution while also arguing they cannot be allowed to await the Ministers decision in the republic as doing so would be detrimental to their immigration enforcement efforts.

All these arguments have been dismissed out of hand by the courts.  In Lawyers for Human rights & another// the Minster of t Home Affairs & another 2004 (4) SA 125 (CC) the Constitutional court held that “The denial of these rights to human beings who are physically inside the country at sea or airports merely because they have not  entered South Africa formally would constitute a section of the values underlying our constitution”

In other Judgments in the SCA and High court this argument was dismissed as pure sophistry which ought to be disregarded offhand and that our courts would have jurisdiction to intervene in these matters in the same manner as they would be expected to intervene in a case involving the murder of a person at a port or entry.  In Abdi V the Minister of Home Affairs  (734/10) 2011  ZASCA 2, the Supreme court of Appeal found that Home Affairs remained the responsible authority when a person has been refused entry and they do not at any point abdicate that responsibility to the conveyance

As to whether a court can order the release of an inadmissible foreigner from an inadmissible faculty pending the outcome of a review of the decision the courts appear divided with judgements for and against the release.  In Chen v the Director General of Home Affairs 2014 ZAWCHC 181, the court having assessed the conditions of the holding facilities at the airport concluded that these holding facilities were in fact detention facilities that had the effect of violating a person’s fundamental right to dignity and the right to freedom and security of person and her right to freedom of movement.  The court went on to order the release of the person pending the minister’s decision but left it to the DHA to determine the conditions of the persons release.

As a final note for the airline industry who often find themselves caught between a rock and a hard place in these situations. It is worth noting the judgment of the High Court in Lin & Another v the Minster of Home Affairs & others. The court made several adverse findings against the airline in that case including punitive orders for contempt of court against certain employees of the airline.  The airline had argued that their function was to merely carry out the orders of the Home Affairs in this case however the court found them wanting and essentially stating that where the airline has been advised of the persons rights it has a duty to ensure that they do not participate in the violation of that persons rights by observing the letter of the law and not blindly follow the instruction of DHA which often have been found to be unlawful.

www.samigration.com

 

We are entering a season of Afrophobia that could severely damage brand SA

11 March 2022 – Sunday Times

Attacks on foreign nationals do irreparable harm to efforts to attract skilled labour and international investors, revitalise tourism and rebuild our economy

We are entering a period of increasing animosity towards foreign nationals in SA. The conversation is extending beyond those who are not documented to those who are documented and are legally in the country...

www.samigration.com