On the 26th of May 2014 the Department of Home Affairs (the ‘Department’) showed its intent to amend the existing immigration laws that had been in effect since the 1st of July 2005.
Without any transitional period, the Department made it patently clear that a foreigner who overstays, as set out in the Immigration Regulations 2014, would no longer be sanctioned by a mere fine on departure, but rather by a compulsory and non-discretionary declaration of undesirability and on ban on any such foreigner from returning to South Africa for up to 5 years.
Therefore a foreign applicant departing South Africa who:
- Has a previous visa and has renewed or changed status of same in South Africa and has a pending application attributed solely as a result of the Department’s inefficiency in failing to adjudicate expeditiously;
- Has South African relatives remaining in South Africa despite he or she being the spouse, parent, child or dependent minor relative of a South African citizen or permanent resident;
- Has overstayed through no fault on medical grounds;
- Has overstayed due to simply ignorance or fault.
All the above cases would all be treated exactly the same since there is no discretion in the application of an overstay in the departure out of South Africa and being declared undesirable up to 5 years.
The immigration laws – section 30(1)(h), regulation 27 & directive 9
On the 26th of May 2014, the Department sought to repeal the Immigration Regulations of 2005 and introduced a series of statutory amendments to the Immigration Act of 2002, as amended, and to the previous Immigration Regulations of 2005.
Regrettably, in light of the severity of the effect of the new laws, very little consultation with the public and its own immigration advisory board took place by the then Minister Naledi Pandor and in so doing turned the face of our immigration policy on its head.
The introduction of new draconian sanctions, not only affecting those foreigners leaving South Africa for various reasons, but so too local South Africans – with the declaration of being determined to be an ‘undesirable’ person in terms of section 30(1)(h) of the Immigration Act 13 of 2002, as amended, read together with Regulation 27 of the Immigration Regulations, and most significantly, Directive 9 issued by the Director-General of Home Affairs.
So how do I become undesirable?
The effect of the 2014 Regulations and especially Directive 9 will now empower and instruct the immigration officials at the international airports and border posts of South Africa to impose a declaration of undesirability that will effectively bar the re-entry into South Africa for a fixed period of time before re-entry.
Any foreigner, no matter what the circumstance or context is, who has then overstayed, will on departure in terms of section 50(1), 30(1)(h) of the Act, read with Regulation 27 and Directive 9 be declared undesirable and issued with a Form 19 to confirm the declaration.
Can I appeal the undesirability and return to South Africa?
As outlined above, any foreigner who has overstayed, will as a matter of course be declared undesirable for a period of up to 5 years.
What the Department has allowed for is an appeal mechanism to the Director-General within 10 days or to the Minister of Home Affairs without a defined time period.
It was evident that after a mere few days of operation that the new laws on undesirability and imminent litigation by immigration law firms, like ourselves, against the Department they introduced a more visible and transparent internal appeal mechanism to those affected by such new laws.
In this way those foreigner who have been declared undesirable can now appeal and ventilate their case with the Department in a more transparent manner as to whether the ban should be lifted or not. And, as importantly, in a reasonable period of time.
Of course, it is not obligatory on the Department to lift the undesirability or in fact have the matter adjudicated in a short space of time.