Our immigration laws envisage FOUR TYPES of overstays for foreigners.

For the purposes of this article the two most common scenarios will be discussed:

Overstay upon departure from South Africa in terms of section 50 of the Act & 30(1)(h)

• Such overstay envisages an overstay in South Africa where the foreigner’s underlying visa has expired whilst the foreign applicant’s visa for renewal or change of status application is still pending and a departure from South Africa is required and the Department of Home Affairs (the “DHA”) has failed to adjudicate such pending application, or worse still, refused such application.
• Or, the foreigner’s visa has expired for whatever reason/s that may or may not be within his or her control and there is no intention to remain in South Africa indefinitely or for the time being.

Overstay of expired visa and intention to remain in South Africa in terms of section 32 & Regulation 30

Such an overstay could result where the foreigner’s visa in South Africa has expired and such foreigner has the intention to remain in the country and apply for a renewal of such visa.

Overstay of visa that expired by operation of law in terms of section 10 and 43 of the Act

• Overstay linked to cancellation in terms of Section 10

Third, the foreigner’s South African has been cancelled by the DHA enforcement arm i.e. the Inspectorate on the basis that the holder has failed to adhere to the terms and conditions of his or her visa. This does not detract from the right of the foreigner to make representations to challenge such cancellation before such cancellation becomes final.

• Overstay linked to breach in terms of Section 43

Fourth, the foreigner’s South African visa is not immediately cancelled by the DHA but the foreigner intentionally or inadvertently breached the terms and conditions that are not detected by the DHA.

IF THERE IS A NEED TO LEAVE SOUTH AFRICA AND THERE IS AN OVERSTAY ON DEPARTURE – HOW DO I RESOLVE?

Awareness of Overstay in light of imminent Departure

There are those foreign persons who remain unaware of their overstay either through ignorance or mistake and upon departure from South Africa are declared undesirable and  get the fright of their lives when they are pulled aside as they have overstayed and banned.

At the same time, there may be foreigners who are required to leave South Africa and are aware of the fact that they will be banned before departing the country.

What happens at the international airport?

Upon international departure from South Africa, an immigration officer employed by the DHA, will ask to see the foreign person’s passport and assess the visa.

Expired Visa

If there is no valid visa in the passport, whether the foreign person holds a receipt for a new visa within South Africa, or does not, or is a young child, an elderly person, seriously ill or not, the immigration officer is obliged as a matter of law to impose an declaration of undesirability, a DHA Form 19, which is the actual banning document, on the foreign person/s departing the country.

DHA Directive to impose Ban by Immigration Officers

The DHA has specifically issued an internal directive to its immigration officers at ports of entry and border posts to impose a ban on all foreign persons on an expired visa on departure regardless of the circumstances.

The Imposition of the Ban

The immigration officer will call upon that foreign person/s to sign a Form 19 Declaration of Undesirability prior to boarding in the departure process and capture on the DHA internal movement control system to avoid the foreign person from re-entering without resolving such ban. Whilst it is our view that such internal directive is invalid it remains the practice.

The immigration officer will normally ask that foreign person to step aside and process the documentation within their immigration offices prior to departure.

The immigration officer will not be empowered to avoid imposing the ban so do not attempt to influence the officer in any shape, manner or form as this is illegal.

What the immigration officer will often advise is to appeal this abroad at the South African Embassy, and to some extent, it is correct, but regrettably, it is only half the story.

WHAT TO DO WHEN BANNED FROM SOUTH AFRICA?

There are two scenarios of foreign persons who will depart South Africa on an expired visa:

• First, there are those foreign persons who would be aware that they have overstayed and would be banned upon departure; and
• Second, there are those foreign persons who only realise the fact that they have overstayed and will be banned upon departure.

The steps to remedy are the same save for an additional step that would be advisable for those who are still in the country and are aware that they will be banned in advance.

Step 1 (if aware of the overstay before departing South Africa)

Write to the DHA and explain the circumstances that led to the overstay, in the first place, and consider the mitigating factors that would be render the ban excusable that primarily led to the overstay in the first place. We would of course advise our clients in this regard.

Step2 – Internal Appeal to Director-General or Minister of DHA

Prepare and submit a proper letter of internal appeal against the imposition of a ban directed in writing to the Director-General or Minister of Home Affairs. Be careful not to make matters worse by making fatal admissions as that would remain part of the file that could come back to haunt such person.

A word of advice is to direct the internal appeal simply to the Minister as there is a designated email address and moreover you need not make the appeal within 10 working days as in the case of the Director-General. Do not even bother attending on the local South African Embassy as it is a waste of time. Moreover, do not give up simply because you may have missed the 10-day deadline as you have indefinite time to appeal to the Minister.

Step 3 – Expedition of Internal Appeal via Court Order

Now, having submitted an internal appeal, which by law, is imperative and a pre-condition to a positive outcome you will find that the outcome from the DHA will simply become blocked indefinitely as DHA do not have the technical resources or staffing to attend to the internal appeals timeously.

It thus become necessary to approach the High Court and get a court order to compel the DHA to adjudicate the outcome.

We represent many clients in this regard either once they become aware of the overstay before leaving South Africa or when they have learnt in most stressful circumstances at the airport.

Urgency of Legal Interventions

There are those cases that warrant urgency as the ban may separate marital spouses, children, parents, siblings, block children to return to local school in South Africa, hinder foreign persons to return to property they may own in South Africa, limit those foreign persons in need to return to receive medical treatment.

Not all cases are urgent and so it is important that if the need to return to South Africa is a commercial one or a matter of convenience it is essential to contact us as soon as possible to bring relief as soon as possible in order to get the court order without delay.

The Outcome – Waiver Letter

The process if followed correctly will result in a waiver letter being issued and emailed to the foreign person banned.

It would require such banned foreign person to print it out and present on the next arrival to South Africa. What should happen on arrival is such overstay listing should be lifted so it does not remain on the DHA system.

The High Court

One of the most influential High Court cases that shaped the overstay process was that of the case of Johnson and Others v Minister of Home Affairs and Others; InRe: Delorie and Others v Minister of Home Affairs and Another (10310/2014, 10452/2014) [2014] ZAWCHC 101 (30 June 2014).

This was a case that was brought very soon after the new immigration laws were introduced at the end of May 2014, and specifically section 30(1)(h) and 50 of the Immigration Act.

It became apparent that the conduct of banning foreigner persons resulting in the separation of a family and notably marital spouses is constitutionally invalid.

The upshot of this case is to appreciate that the imposition of a ban will seldom survive the rights of marital and family separation and it is unfortunate that DHA does not empower its own immigration officers stationed at the airports and border posts to exercise a discretion as that can avoid endless litigation and costs against the State.