SPECIALIST LEGAL SERVICES

We are able to approach a competent court for any relief sought by any person or entity in terms of the Immigration Act and/or to challenge law or various aspects of law.

Recent matters brought against the Department of Home Affairs include:

Obtaining orders to direct the Department of Home Affairs to finalise and produce an outcome on long-pending applications within a specified period of time;

In extraordinary circumstances obtaining an order substituting or varying a decision made by the Department or lack thereof;

Bringing an application for the Department to be held in Contempt of Court for not abiding by a previous decision made by the High Court;

Challenging provisions of law;

Our South African immigration services also include

Navigating the complexity of the South African immigration landscape can present with a multitude uncertainties and challenges for both individuals and employers.

As such, Xpatweb aims to assist both foreigners and employers in successfully managing all aspects of South African immigration policies and legislation, to ensure that all aspects of individuals and foreign employees’ immigration status and the relevant authority is obtained to ensure continued compliance.

There are instances where individuals are stranded within the Republic without the adequate status and are in dire need of regularising their current status within South Africa

Declaration of Undesirability

Section 30(1) of the Immigration Act, 2002 read with Regulation 27(3) of the Immigration Regulations, states that overstaying a South African visa results in being declared an “undesirable person,” with the duration of this status determined by the length of the overstay. However, affected foreign nationals may apply to the Overstay Appeals Department at Home Affairs to have this declaration uplifted by submitting a detailed motivational letter to the Director-General. This letter must clearly explain the circumstances leading to the overstay and justify the appeal, citing factors such as misinterpretation of legislation or unforeseen, uncontrollable events.

Prohibited Persons

Foreigners who obtain visas which subsequently turned out to be fraudulent run the risk of being declared as a prohibited person, which entails that they may not be able to return to South Africa at all. Should the visa have been obtained through innocent means and through no fault or participation of the Applicant, it remains possible to direct a request to the Director-General of the Department of Home Affairs, to have the Applicant declared as not being a prohibited person in terms of section 29(2) of the Immigration Act, 2002 read with regulation 26 of the Immigration Regulations.

Regulatory waivers (including Blanket waivers)

In instances where an applicant does not meet specific prescribed requirements under the Immigration Regulations, a waiver application may be submitted for consideration. This request, made under Section 31(2)(c) of the Immigration Act, 2002, is directed to the Minister of Home Affairs. A waiver seeks the Minister’s approval to exempt the applicant from certain regulatory requirements, enabling them to apply for a specific visa category despite not fully meeting the criteria. This provision allows individuals or companies, upon demonstrating valid grounds, to be exempted from prescribed requirements in the Immigration Regulations.

Illegal Status

In cases where a visa has expired, it may be necessary to apply for a letter of “Good Cause” or authorisation to remain in the Republic pending an application for status. This application requires a detailed motivational letter supported by evidence to substantiate the circumstances that led to the lapse. It is essential to demonstrate that the expiration occurred due to circumstances beyond the Applicant’s control, as weak or insufficient motivations may result in the application being declined, potentially accompanied by a directive to depart. Additionally, proof of readiness to submit a new visa application, such as a complete application pack with all supporting documents, must accompany the request for a letter of Good Cause. This application is submitted in person to the Department of Home Affairs and may take several months for review and resolution. During this period, the applicant may be issued a Form 20 as interim proof of their pending status. If the letter of Good cause is Approved, the subsequent visa application can then proceed through the designated submission channels.

Appeals and Litigation

Internal appeals submitted to the Department of Home Affairs does not present an exhaustive remedy. Should a second internal appeal be refused and provided the application has adequate merits to be taken on review, we are in a position to have the decision of the Department of Home Affairs reviewed and set aside by a competent court.

The Promotion of Administrative Justice Act (PAJA) allows for a competent court to review and/or vary the decision made by the Department of Home Affairs, if the decision so taken meets certain criteria and there are adequate grounds to have the decision set aside.

Litigation has become a prominent tool in addressing both the delays in communicating decisions and erroneous decisions made by the Department of Home Affairs.

Our South African Citizenship services are, but not limited to:

Assisting applicants to acquire South African citizenship which may be acquired in a number of ways, including birth, descent, naturalisation, marriage and in the event of being stateless.

The criteria for citizenship in each of the following categories are –

Birth

South African citizenship by birth is granted under specific conditions. A person is a citizen by birth if they were a South African citizen before the commencement of the South African Citizenship Amendment Act, 2010, or if one of their parents was a South African citizen at the time of their birth, regardless of where they were born. Additionally, individuals born in South Africa who do not hold citizenship or nationality in any other country, provided their birth is registered under the Births and Deaths Registration Act, 1992, may also be citizens by birth. Furthermore, individuals born to parents with permanent residence in South Africa may qualify for citizenship by birth if they have lived in the country continuously from birth to adulthood and their birth is duly registered.

Descent

A person adopted under the provisions of the Children’s Act by a South African citizen becomes a South African citizen by descent, provided their birth is registered in accordance with the Births and Deaths Registration Act.

Naturalisation

South African citizenship by naturalisation applies to individuals who were naturalised citizens before the commencement of the South African Citizenship Amendment Act, 2010, or those granted a naturalisation certificate under section 5 of the Act, effective from the date of issue. Additionally, a child born in South Africa to non-citizen parents who do not have permanent residence may apply for citizenship upon reaching adulthood, provided they have lived in the country continuously since birth and their birth is registered in accordance with the Births and Deaths Registration Act.

Our specialised citizenship services extend but are not limited to the following matters –

Confirmation of status

Applies to individuals who have involuntarily lost their status and have no documentary proof to apply for their status.

Retention of citizenship

A South African citizen may lose their citizenship if, as an adult, they voluntarily acquire citizenship or nationality of another country, or if they hold dual citizenship and serve in the armed forces of a country at war with South Africa. However, individuals can apply to the Minister for permission to retain their South African citizenship before such loss occurs. The Minister has the discretion to approve retention based on the application.

Certificate of citizenship status

A certificate confirming South African citizenship status (when in doubt or otherwise).

Resumption of citizenship

Individuals who have lost their South African citizenship under specific provisions may apply to resume their citizenship under certain conditions. A minor who ceased to be a citizen under Section 10 or related laws may declare their intent to resume citizenship after turning 18, subject to approval by the Minister. Similarly, any person who lost citizenship under prior laws or specific sections of the Act, and who resides in South Africa permanently or returns for permanent residence, may apply to the Minister for the reinstatement of their former citizenship. The Minister may grant the application if the reasons for the loss of citizenship are no longer relevant and issue a certificate confirming the resumption of South African citizenship.