Then in 2014 the immigration legislation changed and much harsher penalties replaced the overstay fine. These penalties, still in effect today, was an ‘undesirable person’ status and a ban on entering South Africa.
Surprisingly, some people still think that paying a fine is the only penalty for overstaying a visa. You can imagine the chaos these people are dumped into when receiving a ban of up to 5 years.
Visas have expiry dates – adhere to them or apply for an extension
Every South African visa has an expiry date on it. The condition is that you must leave the country on or before this date. If you’d like to continue your stay past this date, you must apply for an extension.
Should an extension application not happen, for whatever reason, your stay in the country will be illegal after the expiry date. In most instances, your illegal status will be discovered during a passport and visa check when you try and leave South Africa. It’s at this stage that you’ll be declared undesirable and receive a ban on entering South Africa again within a specified time frame.
Bans of up to 5 years applied to all offenders
The duration of the ban that’s imposed depend on how long the visa overstay was:
- Less than 30 days: Undesirable status and a 12-month ban from re-entering South Africa.
- More than 30 days: Undesirable status and a 5-year ban from re-entering South Africa.
You’ll only be able to enter South Africa again after the ban has lapsed.
Please note that a declaration of undesirability and overstay bans are applied to anyone and everyone at border controls. This includes foreign nationals whose existing visas expired while waiting on an extension application’s outcome and – incredulously – even children. We have come across cases ourselves where families were split up! These families then have to endure the anxiety of waiting on the outcome of their overstay appeal before the family can be reunited again.
You may lodge an ‘Appeal for Overstay’
The Immigration Act provides for the opportunity to appeal a declaration of undesirability and an overstay ban. You must do so within 10 days though.
Unfortunately, there is no guarantee that the outcome will be favourable. To give yourself the best shot at success, work with an immigration lawyer when lodging an appeal.
Factors that may influence your appeal’s outcome
When lodging an appeal, you get the opportunity to motivate why the status should be overturned and the ban lifted. The reasons given must be substantial to convince the Department of Home Affairs to do so.
The factors that may steer the DHA towards a positive outcome include:
- Foreign nationals visiting a spouse, child, parents, or a dependent minor or relative in South Africa.
- A pending application for temporary or permanent residency.
- Employment contract.
- Medical conditions.
Of course there are also certain factors that could negatively affect your appeal. These include:
- Previous incident/s of overstay.
- Any serious medical conditions that may have dire consequences.
Don’t let it happen to you!
To prevent an undesirable status or overstay ban happening to you is simple – don’t overstay your visa.
The DHA stipulates that should apply for an extension to your visa at least 60 days prior to the expiry date. This gives the DHA enough time to process your extension application before the expiry date arrives.
For visitors, this means applying for an extension of visitor visas as soon as possible after arrival in South Africa. For temporary residents our recommendation is to submit a renewal as soon as possible – although renewals cannot be submitted more than 6 months prior to the visa expiry date.
Contact us if you need help with an extension application
If you’d like assistance with your visa extension application, you are more than welcome to contact us. You can reach our Cape Town team on +27 (0) 21 424 2460 and our Johannesburg team on +27 (0) 11 234 4275. Alternatively, send us a call back request and one of our immigration experts will contact you instead.
Unfortunately Intergate cannot assist with overstay appeals, but we can give you general advice and refer you to immigration lawyers you can trust.