The Department of Home Affairs removed directive 43 of 2010 from the Immigration Regulations in February this year. What is the implication of this on foreigners in South Africa?

The withdrawal of this directive means that even where a foreign national has an application for residence pending in South Africa, such a foreigner would be penalised for an overstay if he attempts to depart from South Africa in the absence of a valid visa. This is even the case even where the foreigner’s application for status was submitted well before the expiry of the existing permit.

What did the directive previously state and how is this different to the current directive?

The directive previously allowed foreigners awaiting the outcome of applications for temporary residence permits to leave and to re-enter South Africa on the basis that they had an application pending within the country, by presenting their acknowledgement of receipt from the Department of Home Affairs as proof of the pending application. Upon presentation of such proof, a foreigner was allowed to depart and re-enter the country even if their permit had expired. It allowed individuals from non-visa exempt countries to travel and to re-enter South Africa without obtaining a visa. Such individuals were granted a thirty day visitor’s visa upon re-entry.  

Are foreign nationals included in this directive allowed to work in South Africa?

Although a visa exempt national is still authorised to re-enter the country provided he/she holds a return ticket and is entering for the purpose of visiting / to await the outcome of the application, such an individual is still precluded from working. A non-visa exempt national will now be denied re-entry into South Africa in the absence of a visa.

When will the new changes come into effect?

New immigration regulations came into effect on 26 May 2014.  

What are the ramifications for people who overstay their visa?  

Amongst other changes: any foreigner who overstayed their visa for even one day will automatically be declared an undesirable person. The period that a foreigner will be prohibited re-entry into South Africa ranges from one to five years, depending on the length of the overstay.  

For an overstay of 1 to 30 days, the person will be declared undesirable for a period of 12 months, for a second overstay of 1 to 30 days within a 24 month period the person will be declared undesirable for a period of up to two years and for any overstay of more than 30 days the person will be declared undesirable for a period 5 years. 

In light of the dire penalty associated with being regarded as having overstayed one’s visa, no person should travel after their existing visa has expired and every individual should ensure that he/she holds a valid visa when exiting the country. 

In conclusion  

It has become imperative to allow sufficient time not only for the processing of one’s application for renewal of your temporary residence application, but also for any delays that may be associated with the granting of such renewal. Individuals dealing with such matters must seek advice well in advance of any travel needs which may overlap with residence application processes and/or visa expiry.