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.
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By its own admission, the department loses most of its court cases - the costs of which are borne by the taxpayer.

Dzmitry Dzenisiuk was deployed to SA in 2014, with his wife joining him under a spousal visa. Both applied for visa extensions in February 2021. Image: Moneyweb
The Department of Home Affairs (DHA) has been blocked by the Pretoria High Court from deporting a foreign worker and his wife, both of whom had been refused visa extensions, based on its failure to properly consider the documents supplied in their visa applications.
This is the latest in a string of court losses notched up by Home Affairs.
In the latest ruling, the high court ruled that the decision not to renew the visa of two foreign nationals must be set aside and returned to Home Affairs for reconsideration.
Dzmitry Dzenisiuk was deployed by Czech company IBA to SA in 2014 by way of an inter-company transfer visa. His wife accompanied him under a spousal visa. Both applied for visa extensions in February 2021.
In May 2021, Home Affairs rejected Dzenisiuk’s application for renewal of his Critical Skills Working Visa on the grounds that there was no proof the employer was registered in SA.
That was clearly in error, as the company registration number was reflected on the visa application forms.
When Dzenisiuk appealed the decision, Home Affairs came back with a different objection, that “according to the company registration provided by you, you are the only listed director, and you are applying as a managing director”.
“The shifting of the goalpost is apparent from the response to the initial appeal,” noted Acting Judge Reinhard Groenewald.
DHA displays dogged determination
Dzenisiuk made a further appeal, providing evidence that he is one of two directors in the company but is not a shareholder.
Undeterred, Home Affairs fired back, accusing him of misrepresentation and stating that he was in fact the owner of IBA and had contravened the Immigration Act.
This, too, was wrong and the DHA’s “failure to properly consider the relevant facts” ultimately led it to “the wrong conclusions,” reads the judgment.
The decision by Home Affairs that either IBA or Dzenisiuk [the applicants] had contravened the Immigration Act would likely have a bearing on any future visa applications by Dzenisiuk.
The applicants argued that no distinction was made between the legal personality of the company and its shareholders, and also ignored the difference between a director and a shareholder.
“Considering the facts of the matter, including the shifting of goal posts by [Home Affairs], as well as the apparent failure to fully consider both relevant circumstances and the apparent oversight in respect of the correct status of [Dzenisiuk’s] employer, it follows that the decisions must be reviewed and set aside,” says the judgment.
The visa applications were ordered back to Home Affairs for reconsideration, and Dzenisiuk and IBA were given 10 days to supplement the applications with any documents deemed appropriate.
No deportation would be allowed until the applications were finalised.
‘Radical overhaul’ of the migration system
In November last year, Home Affairs published a white paper proposing a radical overhaul of citizenship, immigration and refugee protection.
The paper laments the stream of negative press against the department and concedes that it has been defeated in most court cases and slapped with court orders of which it has not been aware.
“This must change as the fiscus cannot afford more,” says the paper, which was widely condemned by human rights group for its proposal to limit the rights of migrants.
Despite its admitted lack of success in the courts, Home Affairs seems determined to plough on with a litigation strategy that has not been in its favour.
Home Affairs also headed for ConCourt
The DHA is headed to the Constitutional Court to appeal another ruling against it for terminating the Zimbabwe Exemption Permit (ZEP) system, which the Pretoria High Court found to be unlawful and unconstitutional.
The DHA and Home Affairs Minister Aaron Motsoaledi’s appeal against that ruling had already been dismissed by both the high court and the Supreme Court of Appeal, in part because there was no consultation with the 178 000 permit holders likely to be affected and the department’s decision did not follow proper procedures. The last avenue of appeal for Home Affairs is the ConCourt.
The ZEP Holders Association, representing many thousands of ZEP holders, argues that government’s new-found zeal for targeting immigrants is an ANC pre-election ploy aimed at appealing to xenophobic elements within the country. This is denied by Home Affairs.



The Trusted Employer Scheme allows employers to more easily get visas
Home affairs minister Aaron Motsoaledi says the remote work visa is for people who are employed in other countries but want to perform that work remotely while staying in South Africa. File photo.
Image: Trevor Samson
Amendments to immigration regulations are important to make it easier for foreigners to obtain visas for tourism, business and work, and this will in turn promote investment in South Africa, said home affairs minister Aaron Motsoaledi on Tuesday.
He made this remark during a media briefing in which he outlined proposed amendments to the regulations.
President Cyril Ramaphosa had in 2022 announced the country would be reviewing its visa regime to make this possible. Ramaphosa appointed Mavuso Msimang, a former director-general in the department of home affairs, to lead an operation aimed at reviewing the work visa system.   
Motsoaledi said Msimang`s report made a number of recommendations and on February 8 the department published draft immigration regulations for public comment with a closing date of March 29.
Motsoaledi said the regulations dealt with the introduction of the remote work visa, the introduction of the Trusted Employer Scheme, the introduction of the point-based system for general work visas and the frequent updating of the critical skills list �` which was previously updated only every four years.
Motsoaledi said the remote work visa is for people who are employed in other countries but want to perform that work remotely while staying in South Africa.
“These will be people in IT, auditing, finance and any other job which allows you to work remotely. But the catch here is that none of them must earn an equivalent of less than R1m. The offer to them is that they do not have to pay tax for employment of six months.”
Motsoaledi said the introduction of the Trusted Employer Scheme (TES) for qualifying companies was a means to provide a flexible pathway for employers to obtain work visas expeditiously in line with best practices.
“In this, the responsibility of collecting documents locally and globally is given to the prospective employer with the proviso that when a random check is done an employer will not be found to have committed misrepresentation.”
Motsoaledi said this would enable the visa to be finalised within 20 days whereas before the scheme it was eight weeks.
“In other words, you are running your own game. The speed with which you will get people from other countries depends on how fast you collect that information to bring to home affairs.”
The TES became active from March 1. Out of the 108 companies that applied, 70 were successful and are now part of the scheme.
Motsoaledi said the criteria for participating in the TES include that the company must make an investment of R100m in the country and must have 100 or more employees, 60% of whom are South Africans. Priority is given to companies in the energy and infrastructure sectors.
Motsoaledi said previously that the frequency of gazetting changes to the critical skills list demanded by the Immigration Act was four years.
“The new thing in the amended regulations is that we have changed the frequency from four years to when it is necessary or when the need arises.”
He said the list was updated twice in 2023. The first was in February with reference to doctors, and the second was in September regarding veterinary services .

Home affairs minister Aaron Motsoaledi is to withdraw the new work visa regulations he gazetted on March 28 and says he was “ill advised” to gazette them the day before the March 29 deadline for public comments on the draft version.

This comes after a meeting at the National Economic Development and Labour Council (Nedlac) last week which raised questions about the process and demanded that the regulations be withdrawn

Home Affairs Minister Dr Aaron Motsoaledi also discussed how small businesses can now make use of the new start-up visas for staff.
Home Affairs Minister Dr Aaron Motsoaledi has highlighted a need to look at reworking spousal visa protocols after they contributed to a backlog at the department more so than any other visa category.
Speaking to media on amended immigration regulations on Tuesday, Motsoaledi and other officials also spent time explaining how businesses particularly small businesses can benefit from new visa schemes.
Visa backlog
The minister said about 90% of the visas in their backlog are applications for relative visas and spousal visas, and this needs looking at.
Motsoaledi described a “conundrum” of having to check that just about every spouse who applies is indeed legally married to the South African citizen.
“Unfortunately, we are reaching a situation were spouses are created where they don’t exist.” he said, explaining this includes couples who go to notary generals to write a contract that they are staying together as partners, and then taking that to Home Affairs to apply for spousal visas.
“But when we send immigration officers to visit such families they never find a spouse.”
Some couples claiming to be spouses also do not have marriage contract numbers, which makes verifying their legal union difficult.
Motsoaledi said critical skills, general work and business visas generally do not see a backlog.
However, another problem Home Affairs experiences is waiting for proof of qualifications from employers before issuing work visas.
Project team tackles the backlog
Director General Livhuwani Tommy Makhode said there is a project team working to clear the visa backlog.
In fact, the turnaround time of critical skills visas has been shortened from eight weeks to about four weeks, he said.
“We have also had an offer from the private sector that wants to come and assist and we are working on the modalities with regards to that,” Makhode said.
The exact figures detailing the visa backlog will be provided to the media at a later date, the officials said.
Trusted employer scheme
Deputy director-general of immigration services at Home Affairs Yusuf Simons said the trusted employer scheme was in its first round as a pilot programme.
“It is a new introduction of a world-wide phenomenon that is taking place to have relationships with employers,” he said.
“We are looking at taking another cohort from May onwards so if you meet the criteria of course you can apply.”
However, those who do not meet the criteria may approach the corporate account unit. This will allow SMMEs and NGOs to register through them, although they will not have the same privileges as larger companies.
The advantage of a start-up visa
As a recommended new visa category, the start-up visa will be implemented alongside a business visa that was already approved.
“The start-up visa makes provision for any person who intends to establish or want to invest in any business can then apply under the regulation 14(1) of the Immigration Act… that gives the opportunity for any small business that falls out of the trusted employer scheme category to slot into that category, or go to our large account unit and register there as an employer, where we will also have a team that looks at those applications,” Simons said