The amendments to the Immigration Act, 13 of 2002 (“Immigration Act”), introduced on 26 May 2014, are the latest topic of scrutiny and debate, adversely affecting South Africans and persons visiting, immigrating or working in South Africa. Families have been separated and relationships strained - both as a result of such.

In essence, the amendments to the Immigration Act can be condensed into five major categories; however this list is not exhaustive:

  1. Spousal visas: to qualify for a spousal visa, the Department of Home Affairs requires proof of marriage or cohabitation for a period of two years.
  2. Work and business visas: work and business visas now place a greater onus on prospective employers and applicants to supply the Department of Home Affairs with a substantial amount of documentation, which will involve the Department of Labour and the Department of Trade and Industry.
  3. Inability to change status in South Africa: foreigners are required to return to their home country to apply for or renew their visas abroad, as opposed to previous regulations allowing this to be done by third parties or within South Africa.
  4. Travelling with children departing from or travelling to South Africa: from 1 October 2014, travelling children will be required to provide their unabridged birth certificates, irrespective of whether both parents are accompanying the child or whether they are travelling with passports. Furthermore, an absent parent will be required to provide an affidavit confirming that they acknowledge that the child will be travelling together with a copy of his or her identity document.
  5. Sanctions on “overstays” in South Africa: these sanctions have been increased from mere fines to being declared an “undesirable person,” potentially banning such persons entering the country for up to five years. Given that this amendment is of most relevance and that it is a prevalent issue currently being faced by thousands of foreigners, it will be elaborated on in this article.

Penal sanctions for “overstays”, contained in Regulation 27(3) and section 30(1)(h) of the Immigration Act, have since been challenged in the case of Johnson and Others v Minister of Home Affairs and Others; In Re: Delorie and Others v Minister of Home Affairs and Another (10310/2014, 1452/2014) [2014] ZAWCHC 101. Two disgruntled families approached the Western Cape High Court after both of the Second Applicants were declared “undesirable” after travelling outside of South Africa and were subsequently banned from returning.

On 30 June 2014, Judge James Yekiso set the precedent for other affected foreigners in the same or similar position by granting the interim relief sought in the above case. Yekiso J suspended the declarations of undesirability and permitted the Second Applicants to enter and remain in South Africa. Yekiso J held that the officials were not exercising their discretion appropriately and that the families were suffering prejudice despite neither of the “undesirable” persons being considered as threats to national security. The second parts of both applications challenge the constitutionality of the amendments to the Immigration Act, which challenge is to be heard at a later stage.

Much of the spotlight is shone on the issue of human rights because the amendments to the Immigration Act hold a greater risk to one’s constitutional rights than that of the presence of “overstaying” immigrants declared as “undesirable”. The amendments are said to disturb one’s rights to human dignity, family life, freedom and security of person, just and administrative action and fails to hold paramount the best interests of children. In conclusion, the upcoming case on the constitutionality of the amendments of the Immigration Act will determine whether the Constitution of South Africa still reigns supreme and upholds the golden right to human dignity, applicable to South Africans and foreigners alike.

Let’s watch this space with interest.