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Is your Visa about to expire?

Know your rights in terms of the amended Immigration Regulations of South Africa and how they affect you

On 26 May 2014 the controversial amended Immigration Regulations of South Africa (Regulations) came into effect. These Regulations have been the subject of much public criticism and may well be further scrutinised in terms of the constitutionality thereof. Widespread media reports have highlighted the radical approach adopted by legislature in declaring certain person’s “undesirable” resulting in their deportation coupled with the appropriately prescribed ban from the country. This bears significant relevance to persons whose visa’s are about to expire or have already expired.

Applicants are now required to apply in person and within 60 days from date of expiry of their relevant visa for a renewal or extension thereof. Applicants will not be able to make any “first time applications” within the Republic of South Africa. Such application will need to be made either in the applicant’s place of residence or at the relevant consulate or embassy in the country where the applicant holds citizenship. Whilst many of the provisions in the Regulations have good intentions, the implementation thereof has been poorly considered with dire implications for foreigners living and working in South Africa.

Below are some of the more significant amendments discussed concisely:

Travelling with children

Possibly the main point of contention and one which has sparked the most debate is the amended provision explicitly providing for the following whilst travelling with children:

  • Every child must have their own passport, and parents travelling with a child must have an unabridged birth certificate of the child to prove they are the parents of that child.
  • Where only one parent travels with a child they must produce an affidavit providing that they consent to the travel arrangements or death certificate of the other parent or court order allowing them to leave the country with them.

Such is the degree of controversy pertaining to this provision that the operation thereof has been further delayed until the end of September and will thus only come into effect 1 October 2014.

Spouse and Life Partner Visa

Spouses and life partners are now required to prove a period of co-habitation of 2 years, as opposed to 5 years under the previous regulations. However, both spouses and life partners are required to attend an interview “on the same date and time to determine the authenticity of the existence of their relationship”. Following this, the visa may then be extended; alternatively application for a permanent residence permit may be considered.

Change of visa status while in South Africa

The Regulations also state that a person cannot change from any one type of visa to any other visa. These applications for change of conditions must be made at a South African mission in the applicant’s home country.

Under the previous legislation, it was possible to apply for a temporary residence permit whilst using a visitor’s visa but the new Regulations have put a stop to foreigners applying for a temporary residence permit while using a visitor’s visa.

In this regard, there has been a successful challenge of the provisions surrounding the declaration of persons to be undesirable which are currently being made unilaterally by Home Affairs officials with no possibility of legal recourse. In the recent matter of Olivia Lock and another v DG Department of Home Affairs (North Gauteng High Court), the applicant, a British citizen, was declared undesirable for 1 year after her spousal visa expired despite the fact that her partner and minor child are South African citizens and she is pregnant.

The application with regards to the declaration of undesirability was made by way of the Promotion of Administrative Justice Act due to the gross procedural unfairness of the manner in which the decision was taken, and the applicant’s right to family life as found by the Constitutional Court [Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (8) BCLR 837 (CC)]. The urgent application has succeeded and the applicant will be allowed to return to South Africa.

Business Visa

This visa sees a more forensic approach in the new application process. Businesses will now need to get a recommendation letter from the Department of Trade and Industry and business visas will only be granted for a period of 3 years at a time.

Critical Skills Visa

The Quota and Exceptional Skills work permit has been replaced by the Critical Skills visa. What this means is that holders of a Quota and Exceptional Skills permit will not be able to renew their visa and will have to apply for the new Critical Skills visa.

Intra Company Visa

An employee must be employed with the foreign office for no less than 6 months before being eligible for transfer to South Africa. This visa will now be available for a 4 year period.

Study Visa

Study visas are issued for the duration of a course but are now granted for longer periods. The Regulation provides that primary school study permits may be granted for a period of 8 years and high school permits for a period of 6 years. Students are now further governed as they may only work for up to 20 hours during both school term and holiday periods – previously the holiday period was not regulated in this regard.

Fines and penalties

Administrative fines issued to foreigners who overstay their visa has been increased to the amount of R8,000. Any other persons in contravention of the act are also liable to a fine or penalty.

If a visa has expired, foreigners face a ban labelling them an undesirable person:

  • 1 year ban if the time stayed over the visa is less than 30 days;
  • 2 year ban if the person has overstayed their visa for less than 30 days again within 2 years; and
  • 5 year ban if the person has overstayed their visa for longer than 30 days at any point.

There are many potential complications which may arise given the complexity and drastic changes to the Regulations. It is therefore recommended that in the midst of these newly effected Regulations you consult an attorney or immigration practitioner to assist and advise you accordingly.

Our team of specialists at Abrahams & Gross can assist you in order to ensure that your rights are adequately protected.

For assistance or more information please contact:

Juan Smuts or Wesley Scheepers, Abrahams & Gross Attorneys

T:  021 422 1323   E:   info@abgross.co.za

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