Although it has been some time since the Immigration Amendment Act and Immigration Regulations came into operation in May 2014, some of the effects of those amendments are still far-reaching and greatly impacting upon foreign nationals in South Africa today.
An important amendment is the requirement by the Department of Home Affairs that all applications for renewal or change of status must be submitted at least 60 days prior to the expiry of an individual’s current visa. Certainly this is not possible in all instances. One of the greatest obstacles in complying with this requirement is where the individual has to first apply for a waiver of certain requirements of the Immigration Act due to the inability to comply with those requirements. Due to the fact that individuals are taking such a long period of time to finalise waiver applications on their own, their visas are expiring while awaiting the outcome of their applications for these waivers. As a result these individuals are placed in an extremely difficult situation.
However, for individuals who have overstayed their visas in South Africa the situation remains the same and the requirements of what need to be done remain the same.
The only option that can be undertaken from within South Africa is to apply for a good cause waiver. This is technically a request to the Department of Home Affairs to allow such individual to apply for an appropriate visa category through the Visa Facilitation Services (VFS).
As the name suggests, good cause requires that excellent motivation be provided to the Department of Home Affairs as to why individuals overstayed their visas and why those individuals should be allowed further application processes from within South Africa. For such good cause application to be successful, the circumstances involved certainly need to be extraordinary. If the application is successful the individual is authorised to lodge an application to the Department of Home Affairs through VFS.
If the application is unsuccessful the individual is declared an undesirable person as a result of overstaying his/her visa and is normally given 14 days to depart from South Africa. This means that the individual then has 10 working days to appeal against the decision to declare him/her undesirable. The application is made directly to Home Affairs head office and the individual is required to remain outside of South Africa until the appeal application has been attended to. Applications of this nature can take a minimum of two to four months to complete as from date of submission. As you can imagine for an individual not planning on even departing South Africa, having to remain outside of South Africa for such a long period of time can cause considerable difficulties.
If the appeal process is successful the individual would then be entitled to apply for an appropriate visa to be able to return to South Africa. If the application is refused it would mean that the declaration against that person as an undesirable person would remain in place and such individual would not be able to return to South Africa until the period of time for which they have been declared undesirable have lapsed.
Determining which process would be the most suitable certainly always depends on the circumstances involved in the case. An immigration attorney should preferably be contacted to assess the situation.
Tarryn Pokroy Rietveld
Julian Pokroy Attorneys
Immigration, Refugee and Nationality Specialist Attorneys
Email: enquiries@immigration.org.za
