OVERSTAY OF TEMPORARY RESIDENCY – CONSEQUENCES & REMEDIES

Overstay-of-Temporary-residenceOVERSTAY OF TEMPORARY RESIDENCY – CONSEQUENCES & REMEDIES

WHAT DOES IT MEAN TO OVERSTAY MY TEMPORARY RESIDENCY VISA?

Generally speaking, in terms of Regulation 9(5)(a) of the Immigration Regulations, an applicant who wishes to renew an existing visa or change the condition of their visa must submit their application 60 days before the expiration of their existing visa.

If a situation arises where an application is not submitted timeously and the previous temporary residency visa expires, one can find themselves as illegal in South Africa due to their overstay, even if the situation surrounding the overstay was beyond the applicant’s control.

As an illegal foreigner, an applicant is then in contravention of section 49 of the Immigration Act and is guilty of an offence. Where a person has overstayed and not attempted to remedy their situation from within the country, upon departure the person in question will be declared an undesirable person and being able to return to South Africa will be dependent on an appeal to the Department of Home Affairs. This process can be very stressful and often not an option for foreigners living in South Africa, especially if their family is here. Until the undesirability is uplifted, it is possible an applicant could be stuck abroad for one to five years.

Further compounding the situation of an overstay, VFS Global South Africa will not accept any application for a renewal visa or change of conditions through their offices unless the applicant has a valid visa or a Form 20 issued by the Department of Home Affairs.

HOW DO I PREVENT OVERSTAYING MY VISA

In order to prevent overstaying a visa, it is highly recommended that an applicant starts compiling documentation for renewal or a change of status four months prior to the expiration of their temporary residency visa. Further, submission of an application for a renewal visa or for a change of status shall be submitted no later than two months before the expiration of the applicant’s current visa.

IF I OVERSTAY, MUST I LEAVE THE COUNTRY?

Overstaying a visa does not mean an applicant must immediately depart South Africa. In fact, it is entirely possible that an applicant who has overstayed has obligations in South Africa that makes it nearly impossible for them to leave.

HOW DO I REMEDY MY OVERSTAY WITHOUT LEAVING SOUTH AFRICA?

In order to remedy this situation within South Africa, it is necessary to apply to the Director-General, in writing, to remain in South Africa pending an application for status. This application is done at the Department of Home Affairs via an Immigration Officer.

In terms of section 32(1) of the Immigration Act and its corresponding regulation, a foreigner who wishes to apply for a status after the date of expiration of their visa must demonstrate two things:

  1. The applicant must be able to demonstrate, in writing, to an immigration official that the reason for your overstay was not due to negligence, but rather it was due to a situation beyond the applicant’s control.
  1. A copy of a complete application that is ready for submission must also be presented to the immigration official that will assess the merits of the applicant’s case.

HOW LONG DOES IT TAKE TO REMEDY MY OVERSTAY?

Once an application to remedy an overstay has been submitted with the Department, the applicant will be given a Form 23 – which is a notice by an immigration officer to person to appear before the Director-General.

Practically speaking, this means that pending a final decision of an application for status, the applicant is to appear at the same home affairs where the applicant submitted their documents in order to follow-up on the application. The process of finalizing an application for status can take as little as two weeks to a month but in practice takes much longer.

If an application for status is adjudicated successfully, then the applicant will be given a Form 20, which is an “Authorization for an illegal foreigner to remain in the Republic pending an application for status”. The Form 20 allows an applicant to immediately make an appointment with VFS and submit their application for a renewal or change of condition to the last visa that was held.

WHAT IF MY APPLICATION FOR STATUS IS REJECTED?

If an application for status is rejected, this means that the Department of Home Affairs did not find the situation surrounding the applicant’s late submission as reasons beyond their control – and therefore the actions surrounding the overstay are considered to be intentional.

In terms of the Act and the Regulations, an Immigration Officer may order the applicant to depart from South Africa within 14 days if an application for status is rejected. Alternatively and often in practice, the Department will give the option of a criminal fine (otherwise known as an admission of guilt fine) for the overstay. However, a criminal fine will lead to a criminal conviction and this will affect the applicant’s criminal record in South Africa and possibly future visa applications both in South Africa and for other countries.

HOW CAN CRAIG SMITH & ASSOCIATES ASSIST?

As lawyers who specialize in immigration law, Craig Smith & Associates can assist foreigners who have overstayed and have not yet applied for status by:

  • Assisting with a letter of good cause to be submitted to the Department with a complete application ready for submission;
  • Follow-ups with the Department pending the finalization of the application for status.
    Alternatively, for those who have applied for status and have been rejected by the Department, we can assist by:
  • Providing a consultation and structure an opinion as to the merits of the rejection;
  • If the merits of the rejection given by the Department were not sound in law, we can provide our services to either appeal a notice or departure or to alternatively litigate against a criminal fine so that the applicant is not given an unmerited criminal record.

About Craig Smith

Craig Smith a Specialist Immigration Lawyer in Cape Town, South Africa