South African Immigration Regulations Create Undesirables
There has been much press lately about the impact of the new South African immigration rules. In particular the removal of Directive 43 and the hardship it has caused many individuals when they have been deemed undesirable due to its withdrawal.
The withdrawal of Directive 43 has seen many people being deemed an undesirable person when leaving South Africa and this has resulted in them being banned from entering South Africa for a period of 1 to 5 years.
- Abundant court cases are seemingly being brought against the Department of Home Affairs concerning this matter.
- There are claims that the actions of the DHA in this regards are unconstitutional.
- At Intergate we have taken hundreds, if not thousands of calls, regarding this issue and most definitely there are some innocent victims.
- There is, as in most cases, two sides to the story though.
So to quote an old expression – lets have a look at the good (well goodish), bad and the ugly, as well as the possible outcomes.
Also importantly what you should be doing if you are in this situation.
Directive 43 was provided to applicants with pending applications and quite rightly so. It is due to the Departments own inability to process an application within a reasonable time period that the need for Directive 43 even existed.
That said, all it took to obtain permission to stay, leave and re enter South Africa was for you to have submitted an application. Submitting an application in no way means you will obtain a permit or visa and there are applications that are of course turned down. Further if leaving South Africa, the only documentary proof required was proof of your submission meaning a recently stamped receipt by the regional office confirming that the application is still in process. Showing this to immigration meant no fines and no undesirable status.
However, we had many reports from foreigners who left and re-entered South Africa without recent confirmation from the Department that the application was indeed still pending.
Realistically this situation could not continue. As an obvious example what if the applicant never went to pick up their permit decision. Maybe in the full knowledge it would be a no. Could they continue to stay, leave and enter carte blanche? All because they held a Directive 43.
No country in the world can be denied the right to ensure its immigration laws are complied with and to have in place a methodology that discourages individuals from overstaying their permit or visa and punish such people accordingly.
One of the issues that caused this situation was also the fact it was permissible to make change of status applications in South Africa. This made it perfectly legal to travel here on a visitors visa and then apply for another type of permit or visa for a longer stay. This opened the doors for abuse. An example was the life partner permit where individuals, who had only known each other for mere days, got permits on the basis of a ‘life time’ relationship. This practise is no longer allowed and applications for a change of status must be made outside of South Africa.
So make no mistake they are the instigator of there own dilemma due to their inefficiencies, but Directive 43 was not the solution, more a stop gap and our laws needed amending.
In the interests of keeping this article to a readable length lets try and be brief:
- It was withdrawn with no notice, yes we mean no notice.
- The previous immigration laws allowed for applicants to travel to South Africa, make their permit or visa application and remain here for the decision. All perfectly legal. This was again stopped with no notice.
- The new penalties for overstaying were published on a Friday and in effect the next Monday – again no notice.
- The Department of Home Affairs often claims it has no backlog, publishes turnaround times of 30 days whilst some individuals have waited literally years. Intergate successful brought a court action on behalf of nearly 1,000 applicants in 2012. After many months of back and forth the case was no even contested in court.
- Individuals have been left with no choice but to become illegal. The DHA has created a situation akin to the devil you do and the devil you don’t.
- Silence is not golden in this case. For many people it is unimaginable, that a state service for the people, funded by tax payers money remains so silent and unaccountable for their actions. Look at the UK who are suffering their own passport débâcle, the minister stood up in commons and apologies to the public. It is doubtful this will happen in South Africa.
Enough of the bad!
Imagine if you can, you have settled in a new country. You have invested several million rands into a business and created 40 jobs for the local population.
Your permit is running out so you submit an application to renew it 3 months prior to your current ones expiry.
Your told you will remain legal in the country, even if your existing permit expires, until the outcome of your permit application is given to you.
You are also told you are free to travel in and out of South Africa.
For fans of 24hrs, the show staring Keifer Sutherland, this all took place in the space of 24 working hours:
- A close family member of your wife is in a car accident back in your old home country.
- You manager to secure a flight for your wife and child, you are unable to go with but hope to join them in a few days.
- Its a tearful goodbye at the airport, you are all very worried about the friend and also being apart from each other.
- You head home to wait for the call from your wife that they have safely arrived.
- She calls:
- she tells you has been stopped at immigration in South Africa and been told she has overstayed her visa’s validity period.
- She tells you she has been banned along with your child for 12 months from entering South Africa
- She says that the directive which made her legal has been withdrawn for not just her but everyone.
- You tell her there is obviously some mistake and not to panic
- You call the DHA and they tell you that there is no mistake but you can appeal
- You call your wife and tell her
- She is obviously as upset as are you
- The family friend is no better, she asks are you coming they may not last much longer
- You explain that if you do you will also be banned from South Africa
- She asks what is going to happen
- You say we are going to appeal
- She asks how long this will take
- You don’t know
- Your new life is in shatters, separated from your wife and child and unable to travel
- Your wife and child rely on you, so do 40 South Africans that you employ.
The above is not us being melodramatic, this has effected hundreds if not thousands of people, breaking up families and some with just as sad stories. They are in this position though no fault of their own.So what going to happen?
Imagine that was you.
There is a few different scenarios:
- The DHA admit they were wrongThe DHA will see the error of their ways and revisit Directive 43 to right their wrongs. Chances of this happening 0%
- It will go to court and:a/ The judge will rule against you and in favour of the DHA. Chances of this happening 50/50 (see the good above)b/ The judge will rule for you and against the DHA, setting the precedent that their actions were illegal. Chances of this happening 50/50
- The DHA sorts it act out. Processes appeals with speed. Redefines Directive 43Firstly there is no excuse with turnaround times taking longer than 30 days. It is now law that renewals must be applied for 60 days prior to the expiry of the current visa or permit. 60 days is more than enough time to process a visa application. In addition. now those applying for a change of status, must do so abroad this issue will go away with time for new applications.
The DHA needs to take responsibility, if they take longer than the 60 days it should become their problem and a directive needs to be given to the applicant allowing them to stay and travel without fear of becoming undesirable.
No one likes to declared undesirable, in some cases it is deserved but with many at the moment it is not.
If someone is declared an undesirable person and can prove that this is due to the DHA not doing their job, the appeal should be instant and the undesirable status reversed immediately.
As alluded to above. the outright abolishment of Directive 43 is totally unfair,
The DHA needs to revisit it, with speed, and amend it to stop abuse. Alternatively and sensibly, reinstate it, give notice of its withdrawal, but ensure in the interim period it clears its back log of applications so no one ever undeservedly faces this terrible situation again.
What if you have to travel?
Out advice remains do not travel, but we realise, unlike the DHA, this is simply not possible for some people.
As things stand you will be declared undesirable, the only very very small good thing about this is at least you know it is coming and can plan.
You also know that you will have to appeal.
Can we help?
We look at each case on its merits and if the undesirable person status was given unfairly we offer an appeals service which you can access either by calling us on any of the below numbers or emailing us here.
+27 (0) 21 424 2460 (Cape Town)
+27 (0) 11 234 4275 (Johannesburg)
+44 (0) 203 764 0889 (England)
+49 (0) 692 573 77336 (Germany)
+31 (0) 207 989 129 (Netherlands)
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