THE CONSEQUENCES OF OVERSTAYING YOUR VISA

 

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

New quotas for foreign workers, who will be banned from starting small businesses in some sectors

03 March 2022 – Fin 24

Employment and Labour Minister Thulas Nxesi released the National Labour Migration Policy for public comment on Monday afternoon.

• This will introduce new employment quotas on foreign workers, as well as ban foreigners from starting small businesses in some sectors.
• "Migrants are in particular concentrated in informal sector – a worrying trend," government said in a statement.

Government will introduce new employment quotas on foreign workers, as well as ban foreigners from starting small businesses in some sectors.

On Monday, Employment and Labour Minister Thulas Nxesi introduced the National Labour Migration Policy (NLMP) and Employment Services Amendment Bill for public comment.

The NLMP will introduce quotas on the total number of documented foreign nationals with work visas that can be employed in agriculture, hospitality and tourism, as well as construction, along with other sectors.

The limit on foreign nationals will be set by the minister of labour, and the quotas will differ per occupation, sector or region. Quotas would apply not only to formal employees, but also to anyone paid for any work as well as "platform workers", such as Uber drivers.

The proposed new legislations will be accompanied by amendments to the Small Business Act, which will limit foreign nationals from establishing small and medium-sized enterprises and trading in some sectors of the economy. This will include a list of sectors where foreign nationals cannot be allocated business visas.

Foreign nationals will include all people who aren't citizens, permanent residents or refugees

There are four million foreign born persons in SA, representing 4% of the population and 7% of the labour force, government said.

"Especially since 2000, the influx largely of undocumented migrant workers has increased dramatically in an ever-expanding range of sectors. Migrants are in particular concentrated in informal sector – a worrying trend," the department of labour said in a presentation.

Nxesi said it was critical for government to act and curb the hiring of foreign nationals in the country, as employers were exploiting desperate foreign nationals and "distorting the labour market".

Nxesi released the National Labour Migration Policy for public comment on Monday afternoon, following an extensive period of consultation with his colleagues in Cabinet.

The policy will now be available for public comment for 90 days, after which it will be referred back to Cabinet with inputs and to Parliament.

The Department of Employment and Labour, Cabinet approved the release of the National Labour Migration Policy for public comment last Wednesday after extensive consultation between government structures, Nxesi and Home Affairs Minister Aaron Motsoaledi.

Nxesi said employers must satisfy themselves that there is no availability of the requisite skills before opting to hire a documented foreign national. He stressed that government would not undermine the rights of foreign nationals in implementing the policy.

"In terms of the law, we can't ban the employment of the foreign nationals. It will not allow us. The Constitution of this country will not allow us to do that. We can limit and control it. That is what we are trying to do," said Nxesi.

Nxesi said along with the migration labour policy, the strengthening of border management policy will be prioritised. He said that his department is stepping up inspections to enforce existing labour and immigration legislation.

Deputy director-general of public employment services Sam Marotoba said it was able to identify "red spots" in migration pressures, including those with special dispensation permits and those who have overstayed in the country.

Marotoba said after conducting research and consultations at government level, the department had to hold cluster and socioeconomic impact consultations with legal advisors.

"This is what took us so long and we are going to embark on public consultation processes. In June we will go to Nedlac and depending on the amount of inputs and comments, we will report to Cabinet and Parliament by July," said Marotoba.

He said South Africa would consult with the African Union, the Southern African Development Community and other regional groupings as the policy is implemented. Nxesi said the consultation process on the policy would be concluded within 90 days.

Pressing labour matters

Nxesi said, after a standoff with truck drivers over the inclusion of their profession in the policy, government had been engaging with truck drivers as recently as last week and was told that truck drivers were looking forward to making inputs on the policy document.

In a veiled reference to the conduct of the EFF who have conducted inspections at restaurants looking for expatriate employees, Nxesi warned that illegal inspections of workplaces looking for documented migrants would not be tolerated and that is was "destructive" and "irresponsible" of political parties to do so.

The National Labour Migration Policy and Employment Services Amendment Bill also makes provision for the "reintegration of the South African diaspora into the domestic economy". This includes the developing of "incentives" for South African workers abroad to "impart skills and invest in labour market and other initiatives in South Africa".

www.samigration.com

Migrants make up about 7% of SA labour force, Department of Labour tells Parliament

Fin 24 – 03 March 2022

 

The formal sector normally use documented migrants and register them appropriately, but sectors in 'obscure places' of in SA employ un-documented migrants, says the DEL.

• The Department of Employment and Labour briefed Parliament's Portfolio Committee on Tourism about migration trends.
• Especially since 2000, there has been a "dramatic influx" of mainly undocumented migrant workers, a worrying trend for the DEL.
• These migrants are particularly concentrated in the informal sector.

Migrants constitute about 4% of the population in South Africa and 7% of the country's labour force, according to the Department of Employment and Labour (DEL).

The department made a presentation to Parliament's Portfolio Committee on Tourism on Tuesday.   

Migration patterns tracked by the department shows that, especially since 2000, there has been a "dramatic influx" of mainly undocumented migrant workers. A worrying trend for the DEL is that these migrants are particularly concentrated in the informal sector.

The department would like to see access to SA's labour market regulated and monitored via "a flexible quota system", a streamlined and seamless visa regime and strong bilateral and multi-lateral partnerships among SADC countries.

"Support SADC regional labour market initiatives via ring-fenced visa arrangements to the benefit of SADC citizens," the department suggested.

According to the DEL, there is a need to address insufficient and absent policy frameworks, for example, concerning recruitment, data requirements, and labour migration to and from South Africa. An appropriate legislative framework has to accompany the policy in order to provide the mandate for state interventions.

It is, therefore, necessary to review current bilateral labour agreements, in the view of the department.

"The absence of a streamlined policy framework will perpetuate a fragmented and inconsistent approach to labour migration, non-aligned institutional frameworks, irregular labour migration, and the non-acquisition and non-retention of critical skills," the department stated in its presentation.

Insufficient regulatory frameworks, for example regarding recruitment, also need to be addressed.

"Two measures in particular need to be taken. Firstly, there need to be comprehensive consultations, also within government. Secondly, draft legislation aimed at implementing the policy, supported by an explanatory memorandum, is key," the presentation states. "Invest in improved inter-ministerial coordination and integrated service delivery - with the DEL as the lead department for all labour migration aspects."

Sam Morotoba, deputy director general of public employment services at the DEL, told the committee that the issue of foreign nationals is very complex. That is why an inter-ministerial committee was established between various departments to look at the issue.

"We have a serious situation of corruption at our borders, especially in certain areas of SA. It relates to human trafficking, crime and movement of illicit goods," said Morotoba. In his view, there is also a need for a complementary policy to address trading by foreign nationals in the informal sector.

"The formal sector normally use documented migrants and register them appropriately, but sectors in 'obscure places' of our country employ un-documented migrants and do not reflect them on their books. This makes it very difficult to know the exact numbers," explained Morotoba.

"Our Constitution, however, even protects foreign nationals who are not documented, because of their rights as human beings. We cannot turn them away from our hospitals, for example."

He further said SA is part of the SADC community and the wider African community.

"Whatever we do, we need to make sure our actions are within the context of regional integration and cooperation in a balanced way," he said. "We are all affected if we do not manage migration well."

He explained that South African companies which do not follow such a balanced employment approach when it comes to migrant or foreign labour, cause friction among South African labourers. He used truck drivers blocking freeways and demanding local companies must reduce their foreign workforce as an example.

"This [unbalanced] employment approach affects not only the tourism industry, but also agriculture. That is why we need a national strategy and a coordinated migration framework," said Morotoba.

The committee also heard that foreign-born migrants are often employed in the tourism industry because they speak languages needed to communicate with foreign tourists. At the same time, they often earn very low wages and endure bad working conditions due to not being unionised.

www.samigration.com

People queuing for eight hours outside Home Affairs sent home without being helped

21 February 2022 | Groundup 

Manager says he is used to addressing angry crowds at Durban office

More than 100 people still waiting in line to be served at Home Affairs in Umgeni Road in Durban demanded that they be helped when the office closed early on Thursday. Photo: Nokulunga Majola

Chaos erupted outside the Home Affairs office in Umgeni Road, Durban on Thursday when scores of people demanded assistance after the office closed early at 3:30 pm.

People had been queuing for more than eight hours to apply for IDs and passports, and by late afternoon, the line was still snaking outside. Many people we spoke to were returning for the second and third time without assistance.

About 100 people were still waiting in line outside when they were informed that the office was closing early, as the system was apparently offline. Thereafter an angry crowd tried to stop a state-branded vehicle from leaving the premises.

According to people who were at Home Affairs the previous day, the system had also been offline for most of the day.

“I was here on Tuesday from 7 am but I had to turn back. I returned [on Thursday] because on Wednesday they only serve matrics. This is so frustrating. We don’t understand why we need to spend a whole day here just to collect IDs,” said Buyile Madonsela from Inanda. She said she spends a total of R76 a day for her and her grandson to travel to Home Affairs.

Nomusa Dabula from Quarry Heights said she needs her ID so she can complete her applications to tertiary institutions. “You cannot do anything without an ID. I came on Friday, I had to return home without any assistance. I came again today and it’s the same issue. How many more times must I keep coming here?” asked Dabula.

To quell the crowd outside, District Manager of Operations at eThekwini, Mbongeni Magagula, told them that what had happened was not isolated and that he was “used to addressing an angry crowd of people” because “it happens every day”. He explained that the staff had already left for the day and asked the group to leave because there was no one to assist them.

Some people were given slips of paper with dates on them on when to return but most of them called for the Minister of Home Affairs to intervene.

Questions sent to Home Affairs were not answered by the time of publication.

www.samigration.com

 

 

Judge tells Home Affairs to get house in order, stop wasting taxpayers’ money

Pretoria News  -21 February 2022

Pretoria - A judge gave the Department of Home Affairs a tongue lashing for wasting taxpayers’ money by not doing its work and ignoring applications made by the public.

He said these ended up in the courts, usually with the taxpayers footing the legal bill on behalf of the department.

Judge MP Phooko, sitting in the Gauteng High Court, Pretoria, said it was time “Home Affairs got its house in order”.

He pointed out the courts were flooded with applications from people who could not get any answers from the department, regarding their legal status in the country.

In the latest such application, British citizen Jonathan Firth applied nearly four years ago for permanent residency with the department. After he did not receive any response from the department two years later, he instructed a lawyer to assist him.

The lawyer wrote letters to the department requesting information regarding the status of Firth’s application, but there was no response.

Even after this application was served, Home Affairs did not respond, and did not attend court either to defend the matter.

It was silence from its side and it adopted a no-response attitude, the judge said.

Firth turned to the court in desperation for an order compelling the department to decide whether he should be granted permanent residency in South Africa or not.

He is in South Africa under a temporary residence visa that was issued to him by the department in August, 2017.

Firth applied for a permanent residency permit in June 2018 through a VFS Global Office in Johannesburg. He was subsequently issued with a reference number.

The records from VFS Global indicate Firth’s application for a permanent residency permit was received by the department on June 6, 2018.

He had subsequently not heard from Home Affairs.

The processing period for an application for a permanent residence permit is not stipulated in the immigration laws of South Africa.

The minimum processing time of eight to 10 months is stipulated on the VFS Global website, but is not legislated.

However, precedent informs that eight months is considered to be a reasonable period for the outcome of a permanent residence application.

The judge said the importance of one knowing the outcome of their application could not be gainsaid, given the significance of a permanent residence permit and the impact it had on one’s life.

Judge Phooko said Home Affairs was under a duty to take decisions, otherwise failure to do so would render immigration laws meaningless.

“It is, therefore, clear that waiting for extended periods for a permanent residence permit application to be finalised without any update whatsoever, is unlawful.”

He added the Constitution mandated public servants to promote and maintain a high standard of professional ethics when executing their duties.

“The Department of Home Affairs is a core government department that produces important documents regarding peoples’ status and access to services in South Africa.

“The department is needed by any person who enters, lives in and/or exits South Africa. Therefore, a crucial department like Home Affairs needs to put the interest of those who approach it for any documentation first,” he said.

He remarked that, at the very least when people approached state institutions, they expected a certain level of service and care, not indifference.

“If the department continues with its non-responsive stance, cases such as this are nowhere near the end. The public purse is also going to be severely affected,” the judge warned.

He gave the department 10 days in which to decide on Firth’s request for permanent residency.

www.samigration.com