The Negative Impact Of Undersirable Status

NEWS | THE NEGATIVE IMPACT OF UNDESIRABLE STATUS

/in , /by

According to South African Immigration Act, a foreigner may, therefore, be declared undesirable by the Director-General of Home Affairs if he or she has overstayed his or her South Africa visa.

Regulation 27(3) stipulates that a person who overstays after the expiry of his or her visa will be declared as ‘undesirable’.  The period of the declaration is determined by establishing the number of foreign national’s period of overstay in the Republic.

A declaration of undesirability status effectively precludes you from applying for a visa and re-entering the Republic for the specified periods of time, as set out in the Regulation:

  • In the case of a person who overstays for a period not exceeding 30 days, be declared undesirable for a period of 12 months
  • In the case of a person who overstays for the second time within the period of 24 months, be declared undesirable for a period of two years
  • In the case of a person who overstays for more than 30 days, be declared undesirable for a period of five years

Poor Promulgation of the Regulation blamed for the Increase of Undesirable Cases

Lately there has been an increase of foreigners who have already submitted the extension of their visa application and have attempted to return to their country of residence and were declared undesirable upon departure. In the past the foreigners could get away with this, with just producing an original acknowledgement of receipt and proof of payment to the official at the Port of Entry upon their arrival and departure.  The change in regulation has been poorly publicised and as a result, many foreigners have attempted to depart the country only to be declared an undesirable person upon doing so.

In 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) the Western Cape High Court considered the effect of Section 30 (1) (h), Regulation 27 (3) and the directive on two families separated due to declarations of undesirability.

The Johnson case concerned Louise Henrikson Egedal-Johnson a Danish national has been married to Brent Johnson a South African national since 2009 and had one child. Egedal-Johnson has been on a Relatives visa since her marriage to Johnson.  The visa was issued 28 February 2012 and expired 27 February 2014. On February 10, Egedal-Johnson applied for the extension of her Relavise visa. On 28 May 2014 her visa application was not adjudicated, and she left South Africa from Cape Town International Airport together with her husband. Ongoing through passport control she was declared an undesirable person and was issued with a form declaring her as undesirable person on the basis that she had overstayed her permit by a period of 90 days. On their return to Cape Town she was refused entry at the Cape Town International Airport and subsequently detained by officials on the basis that she had been declared an undesirable person. She was subsequently deported to her country, Denmark, together with the parties’ child.

Egedal-Johnson on behalf of his family applied for urgent relief from the Western Cape High Court. Judge James Yekiso made the following key findings: Shortly before Egedal-Johnson and Henderson had departed the country on May 28, the immigration laws relating to undesirable people had fundamentally changed and the introduction of section 30 (1) (h) meant that foreigners who overstayed on expired permits could be declared as undesirable.

Their statuses meant that Egedal-Johnson, Henderson and their respective families were suffering prejudice. It was held that their statuses be suspended, thus they were permitted to enter and remain in the country.

Appealing the Decision

The major issue is the delays and backlogs faced by the Department of Home Affairs, basically leaving foreigners stuck in their country of residence until they have received an outcome on their applications.

In the event that you are required to travel out of South Africa and you are declared undesirable, you have 10 working days within which to submit a written representations accompanied by supporting documents appealing the decision.

The formal appeal process provides the aggrieved party with an opportunity to convince the Department why their status of undesirability should be removed. One has to provide the Department with a substantial reason in order to change their undesirability status.

The following important factors are considered when one submits their formal written representations to the Department:

  • A medical condition that would not allow the person to travel
  • A foreigner visiting their family member
  • A pending visa or passport application
  • Any other personal circumstance that will support the application

These representations can be submitted to the Department of Home Affairs and it is also highly recommended that one should enlist the service of a  professional immigration practitioner or attorney to assist. Since the process is quite tedious, the Department will need to conduct certain investigations in order to determine one’s innocence in this matter and if you do not submit an appeal that is compliant with the Act – a delayed or negative outcome is inevitable.
AUTHOR
Lerato Mahupela - Immigration Specialist

Lerato Mahupela
Immigration Specialist

Children Born By Foreign Parent Are Eligible For SA Citizenship Judgement By The Concourt

NEWS | CHILDREN BORN BY FOREIGN PARENT ARE ELIGIBLE FOR SA CITIZENSHIP, JUDGEMENT BY THE CONCOURT

/in , /by

Despite South Africa passing their first Citizenship Act no. 88 of 1995, it was discovered in 2010 that the Act made no provisions for children born to foreign parents in South Africa.

In terms of Section 4 (3) of the amended Act stated that:  “A child born in the Republic of parents who are not South African citizens or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if –

  • He or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and
  • His or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act of 1992

Even though the Citizenship Act of South Africa was amended in 2010, it came only into operation in 1 January 2013. In government you cannot pass an Act without its Regulations this means that even if the Act was passed, the applicants could not apply because they do not know the modus operandi of applying.  Failure of the Minister of Home Affairs (Aaron Motsoaledi) to promulgate regulations for the applications for citizenship in terms of Section 23 of the Act led to the decision of the High Court ordering the Minister to accept applications on affidavits.

Initially the case was first taken to the Western Cape High Court where the Minister argued that the five applicants did not fall under the terms of the Amended Act because they were not born before 2013. The case was appealed at the Supreme Court, where the applicants were regarded to have been treated unfairly by the Department of Home. The judge remained by the decision of the Western Cape Court.

Ordinarily when a child turns of major age, they automatically acquire status of their parents.  However when the applicants represented in Legal Resource Centre reached 18 years after 2013 and approached the Department of Home Affairs to apply for Citizenship, they were told that the Citizenship Act does not apply retrospectively – meaning that it only applied to children born after the Act was enacted on 1 January 2013.

The recent judgement released on the 13 of February 2020 by the Constitutional Court orders that Department of Home Affairs declare that Section 4(3) of the Citizenship Act is applicable to persons who meet requirements irrespective of whether they were born before or after in 1 January 2013 and requests that Department of Home Affairs develop regulations to the Citizenship Act within a year and accept the prejudice to the applicants who cannot apply for citizenship involves not only practical implications but also fundamental constitutional entitlements.

In his interview with eNCA (27 February 2020), the Minister explained that the judgement allows application by affidavit until the Department put in place its Regulations.  He expressed his disappointment by saying that this was quite unfortunate as this four-year legal battle could have been avoided if his legal team adhered to the order of High Court. Nevertheless, he undertook to take some disciplinary actions against certain people in his Department for dealing with this matter carelessly.

There are three ways in which a person can be a citizen according to the Eighth Amended Act of the of the South African Citizenship Act of 1995 that came into operation on 1 April 2003:

  • By birth
  • By descent
  • By naturalisation

Citizenship by birth and descent are legal rights for anyone who can prove the facts of birth and parentage. Citizenship by naturalisation is not a legal right. It can be granted or refused by the Minister of Home Affairs.
AUTHOR
Lerato Mahupela - Immigration Specialist

Lerato Mahupela
Immigration Specialist

Visa Relief: Home Affairs Moves Quickly to Protect South African Business Interests with China Amidst Coronavirus

NEWS | VISA RELIEF: HOME AFFAIRS MOVES QUICKLY TO PROTECT SOUTH AFRICAN BUSINESS INTERESTS WITH CHINA AMIDST CORONAVIRUS

/in , /by

In response to growing reports about the severity of the virus, The Department of Home Affairs (DHA) in February issued a Directive for Chinese Nationals allowing them to renew their visas in SA in the short term.

Since the issuance of the directive, more countries have become affected and which has consequently resulted in increasing travel restrictions; as we are now at ‘Global Pandemic’ level.

Consistent with this Directive, we would not be surprised if the DHA extends this temporary concession to cover all affected countries in line with the Directive issued for Chinese nationals.

The current Directive accordingly permits Chinese nationals who are still within South Africa, to extend their stay on a short-term temporary basis until 31 July 2020. This Directive further includes the following qualifying criteria –

  1. Those on long term work visas, such as Intra Company Transfer Work Visas, and that are due to expire within on or before 31 July 2020, will be allowed to apply for a short term work visa, also known as a Visitor Visa under Section 11(2) for a period not exceeding 180 days.
  2. Chinese Nationals who are currently on a Visitor Visa and have reached the maximum period and technically not allowed to renew, may apply for a new Visitor Visa stipulating the same conditions, for a period not exceeding 90 days.
  1. Chinese Nationals’ whose visas that have expired since 01 December 2019 and that have expired on 29 February 2020, may (have) apply(ied) for the renewal of their current visas, where applicable, without having to obtain a form 20 should the visa have expired by the time of submission.

The DHA should be applauded for a quick and decisive interaction and response to this global pandemic.

Whilst there are many foreign nationals and employers who hold the view that a work visa process is a daunting process, this is simply not true. The problem cases are mostly attributable to the incorrect process being followed, protocols not observed and in isolated cases certain Department of International Relations staff, who are not correctly following the process. These perceived obstacles are easily overcome with a properly motivated business case and following the correct channels.

The DHA holds wide discretionary powers to serve the interests of all South Africans, and with the imperative of keeping South Africa safe and protecting foreign investments; this quick ‘thinking on their feet’ shows that South Africa becoming more investor friendly, a move we applaud.

Click here to view the current Directive applicable to Chinese nationals.

Immigration directive for spouses and children

NEWS | IMMIGRATION DIRECTIVE FOR SPOUSES AND CHILDREN

/in , /by

Prior to this, foreign spouses and children were not allowed to change status from an entry/holiday visa to a long term visa from within South Africa and as such were required to return to their home countries and submit the applications at their nearest South African mission. The missions would further retain the applicant’s passport which therefore made it impossible for them to travel to South Africa whilst awaiting their visas.

This process created a significant burden as families were being separated and sometimes for long periods of time. The Constitutional Court of South Africa has recognised this problem and measures have now been put in place to allow foreign families to submit their Temporary Residence visa applications and remain in South Africa whilst awaiting the outcome.

Going forward, this judgement will ease the visa process for families of South Africa citizens and Permanent Residency holders who will be able to reside in South Africa and continue with their day to day activities whilst awaiting their Temporary Residency visas.

Shortly after the judgement was delivered, the Department of Home Affairs in South Africa released an official Immigration Directive confirming these changes and advising all South African missions abroad to adhere accordingly.

For further information regarding the process for spousal or dependant visas, please do not hesitate to contact us for a consultation.

Business or Work Trip A Target for Immigration Inspections in Mozambique

NEWS | BUSINESS OR WORK TRIP? A TARGET FOR IMMIGRATION INSPECTIONS IN MOZAMBIQUE

/in , /by

With this increase in the number of projects, companies, particularly foreign owned, are on the radar of both the Ministry of Labour, and the Department of Immigration. These companies are targeted for Immigration compliance in Mozambique by both Immigration and Labour departments through regular audits and inspections. Companies are, therefore, recommended to take the necessary precautions to ensure compliance due to the increasing number of penalties, fines, and suspensions issued.

The Department of Immigration and the Ministry of Labour in Mozambique are two separate departments responsible for the compliance of foreign nationals in Mozambique. The Department of Immigration issues residence permits, visa extensions, and governs the use of visas issued by the Mozambican diplomatic missions abroad. The Labour Directorate, on the other hand, governs the issuance of work permits.

Use and Validity of a Business Visa

Business visas for Mozambique can only be issued at the Mozambican diplomatic missions abroad and currently cannot be obtained upon arrival except by Angolan nationals. Even other nationalities that are part of the SADC region are recommended to apply for a business visa at a Mozambique consulate or embassy prior to attending meetings in Mozambique. These are generally issued with a validity of 90 days, single or multiple entry, and, in exceptional circumstances, may be issued for 180 days. Despite the validity of 90 days, the duration of each stay in-country cannot exceed 30 days. The Department of Immigration may extend a stay in-country in extraordinary circumstances; however, in practice, business travellers are required to exit and re-enter provided they have been issued multiple-entry visas.

The Broad definition of Work

Immigration inspectors are responsible for ensuring that foreign nationals obtain the appropriate visa type depending on the nature of their activities. Where activities have extended beyond that of business, that is, other than business meetings, attending conferences, or attending a training session, Labour inspectors may construe your activities as work. Labour inspectors are stringent in ensuring that any form of work activity whether it is working in an office behind a desk, conducting a training session, handling of equipment, auditing financial accounts, and so on, require a short-term work permit to accompany a business visa. As such, the definition of “work” is broad in Mozambique, and often determined at the discretion of the Labour inspectors. To avoid suspension of the business travellers, and the issuance of penalties and fines on the inviting Mozambican company, a short-term work permit can be applied for prior to travel.

How Does One Apply for a Short-term Work Permit

Short-term work permits in Mozambique are applied for at the Labour Directorate in the province where the work is expected to take place and can take up to 3 weeks to be processed. It is not endorsed in the applicant’s passports and, as such, it can be applied well in advance for intended travel for work-related purposes. Short-term work permits can be valid for up to 90 days or 180 days in a calendar year for the non-oil and gas, and oil and gas sectors respectively. Document requirements and processes are straightforward and hassle-free.

Takeaway

It is important to take note of the restrictions placed on business visas as well as short-term work permits in Mozambique. Individuals and companies are held accountable for their immigration compliance to the requirements of both the Department of Immigration and the Ministry of Labour and should ensure the appropriate visa type and work permits are in place to avoid immigration penalties, fines, and suspension of foreign nationals.

AUTHOR
Tarissa Wareley - Immigration Specialist
Tarissa Wareley
Immigration Specialist