The Department of Home Affairs extends blanket concession until 30 June 2024 ftin

The Department of Home Affairs extends blanket concession until 30 June 2024

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This decision is communicated just 9 days before the expiration of the previously granted extension. The delay in the announcement had left many nervous, as many feared that they would have been required to depart South Africa by 31 December 2023.

The Directive issued by the DHA introduces the below measures with immediate effect:

1. For foreign nationals awaiting outcomes on their waiver applications:

Visa holders with pending waiver applications as at 30 November 2023, will receive a temporary extension until 30 June 2024. This extension allows the DHA to process their applications and enables applicants to receive their decisions and apply for appropriate visas. Visa holders who need to travel but are awaiting the outcome of a waiver application, will be allowed to exit and re-enter South Africa at a port of entry up to and including 30 June 2024, without being declared undesirable. However, applicants from countries that are not visa exempt who travel out of South Africa with a waiver application receipt, are required to apply for a port of entry visa which would allow them re-entry into South Africa.

2. For foreign nationals whose visa applications are still pending:

 Long-term visa holders (for work, business, study, relatives, and accompanying spouses) whose applications remain pending as of 30 November 2023, will be granted a temporary extension until 30 June 2024, meaning maintaining their current visa status. However, these foreign nationals are restricted from engaging in any activities beyond those permitted by their existing visa conditions. Visa holders who need to travel but are awaiting the outcome of a long-term visa application, will be allowed to exit and re-enter South Africa at a port of entry up to and including 30 June 2024, without being declared undesirable. However, applicants from countries that are not visa exempt who travel out of South Africa with a long-term visa application receipt, are required to apply for a port of entry visa which would allow them re-entry into South Africa.

3. For foreign nationals whose appeal applications are still pending:

 Visa holders who have appealed a negative decision on an application for a long term visa will receive a temporary extension until 30 June 2024. Visa appeal applicants who need to travel but are awaiting the outcome of an appeal application for a long-term visa, will be allowed to exit and re-enter South Africa at a port of entry up to and including 30 June 2024, without being declared undesirable. Applicants from countries that are not visa exempt who travel out of South Africa with an appeal application receipt, are required to apply for a port of entry visa which would allow them re-entry into South Africa. All appeal applicants are required to produce a copy of the rejection letter with a receipt for the appeal application on departure and re-entry into South Africa.

4. For short-term visa holders with visas valid for less than 90 days:

Short term visa holders who have applied for a renewal of their visa but have not receive the renewal outcome by 23 February 2024, will be required to make the necessary arrangements to depart from South Africa on or before 29 February 2024. The above measures only apply to foreign nationals that have been legally admitted into South Africa and who have submitted an application via VFS Global on or before 30 November 2023.

This decision is communicated just 9 days before the expiration of the previously granted extension. The delay in the announcement had left many nervous, as many feared that they would have been required to depart South Africa by 31 December 2023.

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Constitutional Court Orders Sections of the Immigration Act, 2002 Unconstitutional: A Victory for Foreign National Parents

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The Court’s decision addresses the rights of foreign nationals who, despite the end of their spousal relationships, have children who are South African citizens.

The applicants in this case had been residing and working in South Africa under spousal visas granted in terms of section 11(6) of the Act. These visas were extended over time, but became invalid upon the termination of the spousal relationships with South African citizens. Notably, children were born from these relationships, and the applicants had played active roles as parents, even after the relationships had ended.

The Court engaged with various constitutional provisions, including sections 1, 2, 3, 9, 10, 28, 29 and 39 of the Constitution of the Republic of South Africa, 1996 (“Constitution”), and found that the current provisions of the Act and Regulations unreasonably limited the rights of foreign national parents and their South African citizen children.

One key finding of the Court was that section 11(6) of the Act, pertaining to spousal visitor’s visas, is only available to foreigners if they don’t qualify for other visas, and only valid during the existence of a good faith spousal relationship. The Court noted that if such a relationship ends, the foreigner is not allowed to continue working in South Africa, leading to potential criminal charges if he or she remains. This, the Court held, adversely affects the livelihoods of both the foreign national and his or her South African citizen child.

The Court also addressed the situation where a foreign parent, after the termination of a spousal relationship, is required to leave South Africa and apply for another visa from outside the country. This separation from the child was deemed unconstitutional, limiting the right of the child and the foreign parent to human dignity and the right to family life in an unjustifiable manner.

In response to these findings, the Court declared sections 10(6), 11(6), and 18(2) of the Act, as well as regulation 9(9)(a) of the Regulations, inconsistent with the Constitution and invalid. The Court suspended the invalidity for 24 months, providing Parliament and the Minister of Home Affairs an opportunity to correct the constitutional defects. The Court has ordered that specific provisions be read into the Act and the Regulations during the period of suspension to protect the rights of foreign national parents and their South African citizen children.

This judgment is a significant victory for foreign national parents and their South Africa citizen children, offering relief to those facing the complexities of spousal relationship terminations and the impact thereof on their ability to live and work in South Africa. The Court’s decision underscores the importance of aligning immigration laws with constitutional rights, particularly in situations involving children’s rights and family life.

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Positive efforts made by the Minister as he extends ZEP and LEP permits for a further two years

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This announcement brings a sense of relief to approximately 54,653 holders of the Lesotho Exemption Permit (LEP) and 178,000 holders of the Zimbabwean Exemption Permit (ZEP).

On Friday, 1 December 2023, the Minister held a media briefing addressing the uncertainty surrounding the ZEP and LEP permits. Following this, the Department of Home Affairs released Immigration Directives number 3 (three) and 4 (four) of 2023 on Monday, 04 December 2023 to detail the decision by the Minister to extend the Exemption Permits.

Aadil Wadee, immigration specialist and admitted attorney, at Xpatweb unpacks the announcement with some key points that may be taken from above directives as follows:

Zimbabwean Exemption Permits

ZEP’s have now been extended for a further period of 12 (twelve) months up until 29 November 2024. This is to allow the holders thereof to apply for an extension of their current permits. The new permits to be issued will be valid until 29 November 2025.

However, Individuals who had applied for waivers or other visas do not need to apply for new permits, as their current status would remain protected and are exempted from having to apply for a new exemption permit while awaiting the outcome of their applications.

Based on the data available, approximately 88 500 current ZEP holders have applied for waivers or other visas provided for in terms of the Immigration Act. This would mean that the directive directly applies to approximately 89 500 current ZEP Holders.

For those who did not apply for waivers, the Minister emphasized that there is no alternative available. He pointed out that the opportunity to apply for a mainstream visa has been extended multiple times, and he urged all affected Zimbabwean nationals to take advantage of the current window to apply for a mainstream visa. We echo the minister’s statement and encourage all ZEP holders to apply for a mainstream visa before 31 December 2023 as it is the only route to Permanent Residency. Should any ZEP holders not opt for this route, they will be required to apply for a new ZEP permit in order to remain legal within the Republic of South Africa.

Lesotho Exemption Permits

LEP’s have now been extended for a further period of 12 (twelve) months up until 29 November 2024. This is to allow the holders thereof to apply for an extension of their current permits. The new permits to be issued will be valid until 29 November 2025.

The Holder of a valid exemption permit will be allowed to freely enter and depart the Republic of South Africa.

The Minister has urged all LEP holders to take advantage of this extension and apply for their new LEP permits through VFS Global.

The above decision to extend the ZEP and LEP permits comes as the Department of Home Affairs has indicated their intent on appealing the ruling by the High Court in Pretoria to the Supreme Court of Appeal. The judgment required him to go back to the drawing board on the ZEP’s and found his decision to terminate ZEP’s unconstitutional. The Minister had stated that both LEP’s and ZEP’s had to be dealt with and treated equally in order keep both exemption permits consistent with what the Department of Home Affairs is doing.

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