Introduction
Many foreign nationals visit and live in South Africa under various permits and visas. A problem often arises when the visa expires, and the person who is the holder of this visa overstays their welcome in South Africa. The main issue that these people face is that they will be banned from South Africa for usually 5 (five) years. Despite being banned, there are appeals that people can make to the Director-General of Home Affairs and the Department of Home Affairs itself to overturn these decisions.
How does one get banned from South Africa?
When one is banned from South Africa, they have been declared an undesirable person in terms of section 30 of the Immigration Act 13 of 2002 (“the Act). Section 30(1) of the Act lists the various types of undesirable people such as:
- One who is likely to become a public charge;
- You have been identified as such by the Minister;
- You have been judicially declared incompetent;
- You are an unrehabilitated insolvent;
- You have been ordered to deport in terms of the Act;
- You are a fugitive from justice;
- You have previous criminal convictions; and or
- You have overstayed your stay in South Africa.
For how long can I be banned?
For reasons 1-7, a person will not be allowed to enter South Africa or even apply for residency. The ban is for a lifetime. In the case of overstays, Regulation 27 of the Immigration Act provides that overstays that are for a period not exceeding 30 days the person will be banned for 12 months.
If a person overstays for a second period during a 24-month cycle, they will be banned for two years.
Overstaying for more than 30 days will result in the person being banned for five years.
Appealing the Ban
If any of the above applies, one will be banned from South Africa. The most common way to get out of this ban is with an overstay reason, and this decision can be appealed in terms of section 8 of the Act. When a foreigner departs South Africa after the expiry of their visa, they will be issued a declaration of undesirability at the point of departure; this is known as a form 19 in terms of the Immigration Act. This declaration will contain details about the duration of the overstay and the ban period. Important to note is that the declaration also instructs the foreigner in question to submit an overstay appeal to the Department of Home Affairs if they would like to contest the ban from South Africa.
To apply for this appeal, the applicant must write a letter to the Department of Home Affairs and the Director-General stating reasons for overstaying in the country. Some of the reasons for overstaying could include studies, work contracts, pending residency applications, medical reasons, and the visitation of a family member. Proof of the reason must be attached with the letter. These are the most common reasons that Home Affairs will accept, but there are no set factors to consider. The applicant will also have to submit a copy of Form 19 and a copy of their passport.
Conclusion
Despite so many being banned from South Africa, not all is lost; an appeal could be possible. If the reasons are valid as to why they have been overstayed and you have provided proof to the Department of Home Affairs, the Director-General may rule to overturn the decision.
