Introduction
Foreigners who stay longer than their visa allows face much harsher sanctions under a new immigration law, which lawyers say is punitive and unconstitutional.
The Immigration Amendment Bill (the “Bill”) was published in Government Gazette No. 39501 of 11 December 2015, in order to amend the Immigration Act 13 of 2002 (“the Act”). This Bill was drafted in order to provide an adequate sanction for foreign nationals who have overstayed in South Africa, or who contemplate a stay beyond the expiry date on their visa.
Section 32
The Bill seeks to amend Section 32 of the Act which reads “Any illegal foreigner shall depart, unless authorised by the Director-General in the prescribed manner to remain in the Republic pending his or her application for a status”. The aforementioned section is, therefore, amended by the insertion of subsection 1A to read “Illegal foreigners who have overstayed, as prescribed, do not qualify for a port of entry visa, a visa, admission into the Republic or a permanent residence permit during the prescribed period”.
Section 50
Further, Section 50 of the Act provides that foreigners who leave South Africa after the expiry of their permits (now known as visas) are liable for an administrative fine, in a prescribed amount not exceeding R3000.00. The Department of Home Affairs (the “Department”) noted that this fine was no longer serving as a deterrent for those who wilfully overstayed their residence permits or visas, and thus proposed an amendment to Section 30 of the Principal Act.
Section 30
The proposed amendment includes an additional paragraph (h) in subsection (1) of Section 30, which declares that foreigners who overstay are “undesirable” where he or she has “overstayed the prescribed number of times”. However, it appears the wording of this provision has created numerous interpretation challenges. Thus, the Bill seeks to clarify such confusion by insisting that the intention was always to declare a foreigner “undesirable” even upon a single instance of overstay.
Purpose of the amendments
The amendments proposed in the Bill appear to serve a legitimate and very necessary purpose. Many immigrants appear to believe that paying a R3000.00 administrative fine is far easier and more cost-effective than embarking on the rigorous process of applying for an extension at the Department. In addition, the amendments seek to prevent the abuse of the asylum seeking system, as well as manage the competition for jobs between foreigners and the local unemployed.
Further, the use of Section 32 of the Act allows foreigners to stay, enter and exit South Africa for the duration of their pending permit applications, as applications can take up to 12 months to be processed. This section enables foreigners to reside and travel in and out of the country as they please, whilst awaiting the outcome of their application. The waiting period has resulted in many foreigners wilfully failing to collect or follow up on the outcome of their application and, despite being undocumented, allows them to remain in the South Africa indefinitely.
The purposes sought by these amendments are identifiable and somewhat necessary in order to curb the prevalence of illegal immigrants. The implementation and practical application of these amendments, however, will result in devastating ramifications for innocent, compliant foreigners.
Problems as a result of the amendments
Upon the amendments being enacted, the Department has made no provision for a transitional period to allow foreigners the opportunity to ensure compliance; or alternatively to ensure that all their documentation is in order. Instead, it is proposed that foreigners who overstay their visa will be sanctioned upon their departure by a non-discretionary declaration of undesirability, and a ban from returning to the Republic of South Africa for between 1 to 5 years. The circumstances for overstaying ones’ visa will, therefore, not be considered prior to being declared undesirable, as no discretion is to be used when making such a declaration.
The rigid application of these amendments has left no room to provide for circumstances that may be out of the control of the visa holder. Circumstances such as emergencies, medical conditions, Departmental inefficiency, and corruption may prevent a visa holder from being deemed to have complied with statutory requirements and may unjustifiably prejudice the visa holder.
The Department has been, and still is, notoriously inefficient and inept. Many foreigners may lodge their extension applications within sufficient time, yet still be declared “undesirable” if they exit the country, for whatever reason, on an expired visa awaiting extension. This poses a Constitutional issue inasmuch as it inadvertently restricts foreigners from leaving South Africa, owing to the fear of being banned from returning or not being issued a visa. It accordingly limits the freedom of movement that everyone, including foreigners who are legally present in South Africa, is entitled to in accordance with Section 21 of the Constitution of the Republic of South Africa, 1996. In addition to the aforementioned Constitutional issue, the inefficiency of the Department to process applications within a reasonable time results in a contravention of the right to just administrative action, as enshrined in section 33 of the Constitution, because waiting 12 months to receive a response regarding a visa application is, quite obviously, unreasonable.
Appeal Mechanism
There is an appeal mechanism established whereby a visa holder who is declared “undesirable” may appeal this sanction within 10 days of receipt of this notice to the Director-General, or alternatively approach the Minister of Home Affairs within no specified time frame. This does not appear to be a comprehensive solution to the problem.
The appeal mechanism, while appearing adequate in theory, will most certainly open the floodgates to large volumes of appeals due to the lack of discretion utilised in declaring a foreigner “undesirable”. The statutory changes do not grant officials the right to stray from the strict parameters set out therein and as such, officials cannot simply apply their minds to the circumstances that may have led to a foreigner overstaying. It appears that the Director-General and the Department neither have the capacity nor the resources to effect the appeal mechanism efficiently and with the due care it deserves. As it stands, the Department is unable to process applications within a reasonable time in the ordinary course of business; to create a new mechanism that is highly administrative and time consuming in nature, will surely create an unmanageable burden on the Department. Further, the appeal process will require a fairly quick turnaround time to meet its purpose in order to reduce the prejudice suffered by innocent foreigners, while such foreigners may remain separated from their families or prevented from meeting employment obligations. Any individual who has experienced the ineptitude of the Department of Home Affairs cannot envisage that it would be able to meet these requirements.
It must also be noted that in 2011, the Department spent R46.3 million on legal costs, primarily incurred in rectifying Departmental inefficiencies. Most notably, these expenses were paid for using taxpayers’ money. There is no doubt that the taxpayers will similarly be made to bear the burden of the Departmental inefficiencies once again, by having to foot the bill in defending the appeals.
Conclusion
Undocumented immigrants pose an economic and security risk; the amendments, however, appear to punish those who are in fact complying with the immigration laws and who obtain the appropriate documentation. The undocumented immigrants, who are the primary target of the new amendments, may continue to reside in the country without repercussion.
A sanction of being banned from re-entering the Republic of South Africa for between 1 to 5 years appears to be far too severe when applied across the board, regardless of the foreigner’s situation or degree of overstay. Further, the new amendments make no differentiation between degrees of overstaying, nor do they take into account first time offenders. It is apparent that there should, in fact, be a threshold applied to those who merely overstay by one day and those who have taken more serious liberties, or clearly intentionally overstayed. A first time offender should, in most foreseeable circumstances, certainly not have to face so severe a sanction as to be labelled an “undesirable”.
It may be of value to retain the administrative fine for those individuals who have overstayed less than 7 days, as it will prevent unnecessary appeals being lodged, which will in turn alleviate the financial burden placed on the Department (and taxpayers). This measure too, should reduce the potential prejudice faced by foreigners who inadvertently overstay in our beautiful country.
Co- Author
Chelsey Byron
Candidate Attorney at Schindlers Attorneys
Phone: +27 (0) 11 448 9676
Byron@schindlers.co.za
