UNDESIRABLE STATUS
Section 30(1) of the Immigration Act, read with Regulation 27(3) of the Immigration Regulations provides that a person who overstays the validity of their South African visa will be declared as an ‘undesirable person’. The period for which the declaration is issued is determined by examining the period the person has overstayed the validity of their applicable visa.
THE NEGATIVE IMPACT OF UNDESIRABLE STATUS
With the introduction of the Immigration Regulations in 2014, the Department of Home Affairs through the Border Management Authority, have implemented more stringent sanctions to those who overstay the validity of their visa. In terms of the Immigration Act, any foreigner national may, , be declared as an undesirable person by the Director-General of Home Affairs if he or she has overstayed the period allows for in terms of his or her South Africa visa. The particular circumstances of the foreigner national are very rarely taken into account when the declaration is issued, which leaves the person in a position that they are unable to return to their family’s and/or employment in South Africa.
SA visa overstay of fewer than 30 days will be banned for 12 months
They will also be given the status of “undesirable person”
More than 30 days, the ban period will be for a period of 5 years
HAVE YOU OVERSTAYED YOUR VISA?
It is not uncommon for foreign nationals to inadvertently overstay their visa in South Africa due to unforeseen circumstances. However, it is important to note that all visitors are required to leave the country within the allotted time specified by their visa. Failure to do so can result in penalties, including a temporary ban from re-entering South Africa, depending on the length of the overstay. This situation can cause significant stress, particularly for individuals with family ties, business interests, or investments in South Africa.
Would you like to expand on the specific penalties or offer advice on how to handle an overstay?
Our expert legal team has the solution for you!
UNDESIRABLE UPLIFTMENT
Foreign nationals who have been declared as undesirable persons, due to visa overstays have the opportunity to make an application to the Overstay Appeals Department at Home Affairs, to have their declaration uplifted and their travel restrictions removed. To initiate this process, a detailed motivational letter must be submitted to the Director-General, clearly outlining the circumstances that led to the overstay. The application should specifically motivate the reasons the application must be successful in the circumstances, whether due to a misinterpretation of current legislation and Directives from Home Affairs or unforeseen circumstances which were beyond the control of the foreign national.
Once the application is approved and the undesirable status is lifted, the individual may submit a new visa application from their home country.
Please note that the estimated processing time for the adjudication of upliftment applications can take anywhere from 1 to 4 months, depending on the complexity of the matter.
We recommend reaching out to our expert legal team to assist with the facilitation of your upliftment application. We have extensive experience in addressing particular points of note, to accurately portray to the adjudicating officials the circumstances which transpired and the reasons the declaration must be removed.
If you have been declared undesirable due to an expired visa, it is crucial to act swiftly and seek expert legal guidance. Without professional assistance, individuals often face avoidable consequences that can complicate the upliftment process. We strongly recommend engaging our experienced legal team to assist in drafting your upliftment application. Our experts are well-versed in addressing the specific details that must be communicated to adjudicating officials, ensuring that the circumstances leading to your overstay are accurately presented and the declaration is removed.
Time is of the essence, as the appeal process can take between 1 to 4 months. Xpatweb is equipped to formally appeal your Undesirable Status with the Department of Home Affairs, helping to secure a successful and expedited outcome.
REGULARISATION/ADJUSTMENT OF STATUS
An individual whose visa has expired but who has not been arrested for the purpose of deportation or have been ordered to depart South Africa may apply to the Director-General for authorisation to remain in the country while seeking to apply for status.
To be eligible:
- The applicant must demonstrate that they were unable to apply for status in time due to circumstances beyond their control; and
- That they are now in a position to immediately apply for status.
Once the application has been adjudicated, the Director-General may upon a successful application grant the foreign national authorisation to remain in South Africa pending the application for status.
The process of adjusting one’s status may take up to 8 months or, in some cases, even longer.
To avoid being declared an undesirable person or from being arrested and deported from South Africa, which will have much more far-reaching consequences, we recommend that you reach out to our expert legal team to assist with an application made to the Director-General to regularise your status in South Africa, to be in a position to apply for a South African visa.