The declaration of undesirabilityan overstay - how to resolve
Origins – 26th May 2014
On the 26th of May 2014 the Department of Home Affairs (the ‘Department’) showed its intent to amend the existing immigration laws that had been in effect since the 1st of July 2005.
Without any transitional period, the Department made it patently clear that a foreigner who overstays, as set out in the Immigration Regulations 2014, would no longer be sanctioned by a mere fine on departure, but rather by a compulsory and non-discretionary declaration of undesirability and on ban on any such foreigner from returning to South Africa for up to 5 years.
Therefore a foreign applicant departing South Africa who:
- Has a previous visa and has renewed or changed status of same in South Africa and has a pending application attributed solely as a result of the Department’s inefficiency in failing to adjudicate expeditiously;
- Has South African relatives remaining in South Africa despite he or she being the spouse, parent, child or dependent minor relative of a South African citizen or permanent resident;
- Has overstayed through no fault on medical grounds;
- Has overstayed due to simply ignorance or fault.
All the above cases would all be treated exactly the same since there is no discretion in the application of an overstay in the departure out of South Africa and being declared undesirable up to 5 years.
The immigration laws – section 30(1)(h), reguation 27 & directive 9
On the 26th of May 2014, the Department sought to repeal the Immigration Regulations of 2005 and introduced a series of statutory amendments to the Immigration Act of 2002, as amended, and to the previous Immigration Regulations of 2005.
Regrettably, in light of the severity of the effect of the new laws, very little consultation with the public and its own immigration advisory board took place by the then Minister Naledi Pandor and in so doing turned the face of our immigration policy on its head.
The introduction of new draconian sanctions, not only affecting those foreigners leaving South Africa for various reasons, but so too local South Africans – with the declaration of being determined to be an ‘undesirable’ person in terms of section 30(1)(h) of the Immigration Act 13 of 2002, as amended, read together with Regulation 27 of the Immigration Regulations, and most significantly, Directive 9 issued by the Director-General of Home Affairs.
So how do I become undesirable?
The effect of the 2014 Regulations and especially Directive 9 will now empower and instruct the immigration officials at the international airports and border posts of South Africa to impose a declaration of undesirability that will effectively bar the re-entry into South Africa for a fixed period of time before re-entry.
Any foreigner, no matter what the circumstance or context is, who has then overstayed, will on departure in terms of section 50(1), 30(1)(h) of the Act, read with Regulation 27 and Directive 9 be declared undesirable and issued with a Form 19 to confirm the declaration.
Can I appeal the undesirability and return to South Africa?
As outlined above, any foreigner who has overstayed, will as a matter of course be declared undesirable for a period of up to 5 years.
What the Department has allowed for is an appeal mechanism to the Director-General within 10 days or to the Minister of Home Affairs without a defined time period.
It was evident that after a mere few days of operation that the new laws on undesirability and imminent litigation by immigration law firms, like ourselves, against the Department they introduced a more visible and transparent internal appeal mechanism to those affected by such new laws.
In this way those foreigner who have been declared undesirable can now appeal and ventilate their case with the Department in a more transparent manner as to whether the ban should be lifted or not. And, as importantly, in a reasonable period of time.
Of course, it is not obligatory on the Department to lift the undesirability or in fact have the matter adjudicated in a short space of time.
Can immigration lawyers assist in the process?
Craig Smith & Associates is the leading immigration law firm in South Africa on the subject of undesirability and the litigation of such matters against the Department having successfully paved the way for prevailing precedent in the Cape High Court on further matters of such nature.
Craig Smith & Associates can assist and would come to the legal assistance of those foreigners affected by such undesirability as follows:
- We would immediately submit a well-crafted appeal to the Director-General or the Minister of Home Affairs and make proper legal submissions and would put the Department to terms in making a decision.
- Should the Director-General or Minister fail to make a decision within the stipulated timeframe as what is construed as a reasonable timeframe i.e. 5-10 days we would approach the Department’s internal section that manages the appeals for an urgent response.
- Should the appeal section of the Department fail to co-operate we would threaten legal action in the High Court on an Urgent or Non-urgent basis depending on the circumstances of the case.
- The Department would now be under severe pressure to make a decision and lift the ban or face court pressure where the case would receive objective ventilation before a Judge of the High Court.
The case of Johnson & Others versus Minister of Home Affairs
Craig Smith & Associates paved the way forward in these matters, duly led by its founding principal immigration lawyer, Craig Smith, who launched an urgent High Court matter on behalf of the Johnson family after they were separated from Mr. Johnson upon returning to South Africa as a family together, after the mother and wife of South African citizens, was refused entry into South Africa.
Craig Smith & Associates courageously intervened in a robust and groundbreaking manner to successfully allow the family, once separated to reunite.
The Johnson matter received widespread acclaim in the media and public at large for successfully confronting this very contentious and sensitive matter of undesirability in South Africa and the immigration laws by building legal jurisprudence that would now give greater protection to those immediately confronted with such horrific situations.