On 17 March 2016, the Immigration Amendment Bill (Bill) was introduced in the National Assembly by the Portfolio Committee on Home Affairs. The stated purpose of the Bill is to provide adequate sanction for foreigners who have overstayed in the Republic of South Africa beyond the expiry date on their visa and to provide for matters connected therewith.

Currently, s30(1) of the Immigration Act, No 13 of 2002 (Act) caters for a number of categories of foreigners which may be declared undesirable by the Director-General and which thereafter shall not qualify for a port of entry visa, visa, entry into the Republic or a permanent residence permit. One of these categories, in terms of s30(1)(h), includes those persons who have ‘overstayed the prescribed number of times’. The wording of this subsection has created many interpretational challenges in that some have interpreted it to mean that a foreigner must have overstayed beyond the expiry of his or her visa on more than one occasion. However, it was never the legislatures intention to only declare an illegal foreigner undesirable once they have overstayed more than one time. As evident from regulation 27 of the Immigration Regulations, 2014, provision is made for a declaration of undesirability for a particular period of time after a foreigner has overstayed for the first time.

In this respect, regulation 27 provides that a person who overstays for a period not exceeding 30 days may be declared undesirable for a period of 12 months. Furthermore, a person who overstays for more than 30 days may be declared undesirable for a period of five years.

As a result of the confusion, the Bill intends on clarifying the issue of whether an illegal foreigner who has overstayed on only one occasion will be granted a visa or entry into the Republic. The Bill aims to amend the Act by inserting the following subsections into s32 of the Act:

“(1A) Foreigners who are illegal by virtue of having overstayed, as prescribed, do not qualify for a port of entry visa, a visa, admission into the Republic or a permanent residence permit during the prescribed period.

(1B) Upon application, as prescribed, from outside the Republic by the illegal foreigner contemplated in subsection (1A), the Director-General may waive the disqualification contemplated in subsection (1A) where exceptional circumstances, as prescribed, exist.”

This proposed amendment clearly provides that a foreigner who has overstayed in the Republic subsequent to the expiry of his or her visa shall not be granted a visa, permit or entry into the Republic and this eliminates any confusion with regard to the declaration of undesirability in terms of s30(1)(h) of the Act read with regulation 27 of the Immigration Regulations.