With the coming into operation of our new Immigration Regulations on 26 May 2014 foreigners who had over stayed on their visas were, almost overnight, declared "undesirable persons" and banned from returning to South Africa for a period of between 1 and 5 years. Families without the means to take Home Affairs to court have been ripped apart, children as young as 5 years old have been prevented from returning, a woman who overstayed for 15 hours because she was lying sick in hospital, banned for a year.

These unfortunate travellers receive a formal notice which tells them they are not welcome back, but that they have 10 days to apply to our Director-General of Home Affairs to have the decision reviewed. What the notice omits to say, is that if they miss this deadline, they can still apply under Section 30(2) of our Immigration Act to have the Minister review the decision taken against them in terms of Section 30(1).

Regulation 27 states verbatim:

"Undesirable persons

1. For the purposes of subregulation (3), a time is calculated as days during a year for which the period of overstay is calculated from the date of expiry of the last valid visa.
2. The Director-General may declare a foreigner who falls within a category listed in section 30(1) of the Act as undesirable on Part A of Form 19 illustrated in Annexure A.
3. A person who overstays after the expiry of his or her visa as contemplated in section 30(1)(h) of the Act, may– 
    
   1. Inn the case of a person who overstays for a period not exceeding 30 days, be declared undesirable for a period of 12 months;
   2. In the case of a person who overstays for the second time within a period of 24 months, be declared undesirable for a period of two years; and

In< >n the case of a person who overstays for more than 30 days, be declared undesirable for a period of five years." 

As things have turned out, the immigration officials at our ports of are currently not exercising any sort of discretion when dealing with foreigners that have overstayed [note the use of the word "may" instead of "must" in Regulation 27(3) stated above, designating a discretion to the official].

Mr. Mkuseli Apleni, the Director General of our Department of Home Affairs, tasked with the practical implementation of our new immigration laws, confirmed this approach at his recent briefing to the Home Affairs Parliamentary Portfolio Committee on 26 August 2014. He said that immigration was a "complex matter", that "(their) intention (has) not been to kill the economy or tourism or anything else." He recognised that the numbers of tourists who contribute to our economy are on the rise (in 2013-2014 South Africa welcomed 13.5 million foreign nationals), and that the Department of Home Affairs was committed to "facilitating the entry and exit of legitimate travellers efficiently and humanely". The Department of Home Affairs, however, had "a Constitutional mandate to defend the country’s sovereignty, security and public safety" and therefore all immigration decisions had to be based on "an assessment of risk to national security, social stability and pressure on social services" The new laws surrounding undesirable persons "are to act as a deterrent (because) a fine has proved not be a deterrent enough, in the past."

Mr Jackie McKay, Deputy Director General: Immigration Services Mr McKay assured the committee that the backlog of visas was "being addressed" and that it was becoming a case "where people get their visas within four to six weeks". He added that "European nationals had abused the system by simply the paying fines and leaving and coming back. The status of being undesirable made people respect (our) laws. Now they are returning home and coming back with the requisite documents." What Mr Mckay fails to mention is that it was because of the inordinate delays on the side of the Department of Home Affairs and the seepage of personal savings whilst awaiting the outcome of their applications, that forced these foreigners to leave the country. One wonders whether forcing them to pay a fine, due to circumstances completely within the control of Home Affairs, was unfair, in the first place.

But what about foreigners who are in South Africa, still awaiting the outcome of applications made under the previous legislation, whose existing visas have in the interim expired?  The new legislation does not specify that they are automatically declared an "undesirable", in order to obtain this status a positive act is required that is duly sanctioned by Mr. Apleni. The stance he has taken flies in the face of Mr. McKay's interpretation of the Department's justification for their change of policy: Provided that the foreigner is in possession of the receipt they received when their application to the Department of Home Affairs was submitted, they remain legally in the country pending the outcome of their application. If such a foreigner elects to leave the country during this period, it is only then they run the risk of being declared an "undesirable" in accordance with Regulation 27(1), as set out above.

Niki Gerneke, Partner

Contact: +27(0)21 419 6495 or gerneke@wylie.co.za