Written by Lesai Seema, Candidate Attorney, and checked by Ayanda David Katjitae, Associate, and released by Chantelle Gladwin-Wood
19 May 2021
The South African (“SA”) Department of Home Affairs (“the Home Affairs”) is the body responsible for overseeing the determination and safeguarding of the identity and status of citizens and the regulation of immigration. This article specifically deals with the immigration branch of the Department in respect of carrying out its functions in processing appeals of foreign nationals who have overstayed in the SA and accordingly, are unable to re-enter the SA due (after leaving) due to them overstaying.
Overstay appeals relate to an application made where a foreign national has overstayed the number of days allocated to his/her VISA. Accordingly, the Department would declare such a foreign national as an “undesirable person” for re-entry into SA and this would further prevent the foreign national from making any other Visa and/or Temporary/Permanent Residence applications at the Department until this status is uplifted.
The Department has in recent years amended the South African Immigration Act 13 of 2002 regarding the declaration of undesirability on the 26th of May 2014. The previous penalty where one has overstayed their visa was a fine of up to R 3 000,00 (Three Thousand Rand) upon departure from the Republic. The Department has replaced the discretional declaration of undesirability with a compulsory and non-discretionary declaration of undesirability. Furthermore, a ban on any such person from overstaying in SA can be given a ban from re-entry for up to a period of 5 years.
The Department however allows for an appeal process where persons declared “undesirable” can have that status changed and the ban uplifted. Any person, regardless of citizenship, who has been declared an “undesirable person” in terms of section 50(1) read with section 30(1)(h) of the Immigration Act, no 13 of 2002 as amended (no. 13 of 2011) read with Regulation 27 and Directive 9, must submit written reasons to the Department.
The documents listed must be submitted in support of the appeal application:
- detailed reasons why the foreign national has overstayed in SA;
- signed declaration of undesirability form received when leaving SA (ie. form 19);
- all relevant pages of the passport, including arrival and departure stamp; and
- any other supporting documentation support of reasons for overstaying (eg. doctors’ certificate, missed flight ticket etc.)
The above appeal application must be directed to the Department’s immigration branch and would then be allocated to a specific case officer who would consider the application and further provide any outcomes to the applicant. Only upon receipt of the outcome letter confirming the upliftment as an undesirable person will the foreign national be able to re-enter SA. In addition, any outcome letter from the Department confirming the upliftment may be required to be attached to any future VISA application in order to avoid any queries.
In light of the above, foreign travellers should always be vigilant to ensure that the immigration officers at ports of entries in SA accurately record and capture their correct departure dates in accordance with their VISA, travel itinerary, as well as ensure that any delays are immediately reported to the relevant embassy or consulate.
It is advisable that if you are declared as an “undesirable person”, and you wish to re-enter SA in the future, you immediately lodge an appeal with the Department. If you have any uncertainties with the appeals process, it is advisable that you contact an attorney or immigration consultant who is au fait with the relevant processes, in order to assist with any overstay appeal and upliftment.
Understanding a declaration of undesirability and the overstay appeal process under the amended Immigration Act.