SPECIALIST LEGAL SERVICES
We have the legal expertise to represent individuals or entities in competent courts for matters related to the Immigration Act, including seeking relief or challenging laws and legal provisions.
Recent matters brought against the Department of Home Affairs include:
We assist clients in obtaining court orders compelling the Department of Home Affairs to finalise and deliver decisions on long-outstanding applications within a legally specified timeframe.
In exceptional circumstances, we help clients obtain court orders to substitute or vary a decision made by the Department of Home Affairs or to address situations where no decision has been made.
We initiate contempt of court proceedings against the Department of Home Affairs when it fails to comply with a prior order issued by the High Court.
We represent clients in legal challenges against specific provisions of the law that may be unconstitutional, discriminatory, or inconsistent with the Immigration Act or broader legal principles.
Our South African immigration services also include:
Navigating South Africa’s complex immigration landscape presents numerous challenges and uncertainties for both individuals and employers.
At Xpatweb, we specialise in helping foreign nationals and employers effectively manage all aspects of South African immigration law and regulatory compliance. Our team ensures that individuals and foreign employees maintain lawful immigration status and obtain the necessary authorisations from the Department of Home Affairs.
In some cases, individuals may find themselves stranded in South Africa without valid immigration status. We assist in regularising their legal standing within the Republic, providing urgent legal solutions to restore compliance and avoid penalties.
Declaration of Undesirability
Section 30(1) of the Immigration Act, 2002, together with Regulation 27(3) of the Immigration Regulations, declares that overstaying a South African visa leads to being classified as an “undesirable person.” The duration of this status depends on the length of the overstay. However, foreign nationals affected by this designation can appeal to the Overstay Appeals Department at the Department of Home Affairs. To do so, applicants must submit a comprehensive motivational letter to the Director-General, clearly outlining the reasons for the overstay. Valid grounds for appeal often include misinterpretation of immigration laws or unforeseen, uncontrollable circumstances.
Prohibited Persons
Foreign nationals who obtain visas later found to be fraudulent risk being declared “prohibited persons,” which can result in a permanent ban from returning to South Africa. However, if the visa was obtained innocently, without any fault or involvement by the applicant, it is possible to submit a formal request to the Director-General of the Department of Home Affairs. This request seeks to have the applicant exempted from the prohibited person status under Section 29(2) of the Immigration Act, 2002, read together with Regulation 26 of the Immigration Regulations.
Regulatory waivers (including Blanket waivers)
When an applicant fails to meet specific requirements outlined in the Immigration Regulations, they may submit a waiver application for consideration under Section 31(2)(c) of the Immigration Act, 2002. This waiver request is submitted to the Minister of Home Affairs and seeks approval to exempt the applicant from certain regulatory conditions. If granted, the exemption allows individuals or companies to apply for a particular visa category despite not fully satisfying the standard criteria. This provision offers flexibility by permitting exemptions from prescribed immigration requirements upon demonstrating valid and compelling grounds.
Illegal Status
When a visa has expired, applicants may need to apply for a “Letter of Good Cause” or authorisation to remain in South Africa while their status application is being processed. This application requires a detailed motivational letter, supported by evidence explaining the circumstances that led to the visa expiration. It is crucial to prove that the lapse occurred due to factors beyond the applicant’s control. Weak or insufficient reasons may result in the application being denied, potentially accompanied by a directive to leave the country. Along with the motivational letter, applicants must submit proof of readiness to apply for a new visa, such as a complete visa application package with all necessary supporting documents. The application must be submitted in person at the Department of Home Affairs and may take several months for review and final decision. During this waiting period, the applicant may be issued a Form 20, which serves as interim proof of their pending immigration status. If the Letter of Good Cause is approved, the applicant can proceed with submitting the new visa application through the appropriate channels.
Appeals and Litigation
Internal appeals submitted to the Department of Home Affairs are not always a final remedy.
If a second internal appeal is refused but the application has sufficient merit, we can assist in applying for a judicial review to have the Department’s decision reviewed and set aside by a competent court.
Under the Promotion of Administrative Justice Act (PAJA), courts have the authority to review, vary, or overturn decisions made by the Department of Home Affairs when those decisions meet specific legal criteria and there are valid grounds for challenge.
Litigation has become a vital strategy for addressing delays in decision-making and correcting erroneous rulings by the Department of Home Affairs.
Our South African Citizenship services are, but not limited to:
We assist applicants in acquiring South African citizenship through various pathways, including birth, descent, naturalisation, marriage, and statelessness.
The eligibility criteria for citizenship under each category are as follows:
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 Children’s Act by a South African citizen acquires South African citizenship 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 before the commencement of the South African Citizenship Amendment Act, 2010, or to those issued a naturalisation certificate under Section 5 of the Act, effective from the date of issuance. Additionally, children born in South Africa to non-citizen parents without permanent residence may apply for citizenship upon reaching adulthood, provided they have lived continuously in the country since birth and their birth is registered under the Births and Deaths Registration Act. Our specialised citizenship services include, but are not limited to, the following:
Our specialised citizenship services include, but are not limited to, the following:
Confirmation of status
This service assists individuals who have involuntarily lost their citizenship status and lack the necessary documentation to prove or reapply 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. Additionally, holding dual citizenship and serving in the armed forces of a country at war with South Africa can also result in the loss of South African citizenship. However, individuals can apply to the Minister of Home Affairs for permission to retain their South African citizenship before this loss occurs. The Minister has discretionary authority to approve or deny such retention applications.
Certificate of citizenship status
Issuance of a Certificate Confirming South African Citizenship Status available for individuals seeking official proof of their citizenship, whether status is in doubt or requires verification.
Resumption of citizenship
Individuals who have lost their South African citizenship under certain legal provisions may apply to resume their citizenship, subject to specific conditions. A minor who ceased to be a citizen under Section 10 or related laws can declare their intention to resume citizenship after reaching the age of 18, pending approval by the Minister of Home Affairs. Similarly, any person who lost citizenship under previous laws or specific sections of the Immigration Act and who either permanently resides in South Africa or returns to establish permanent residence may apply to the Minister for reinstatement of their former citizenship. The Minister may approve the application if the circumstances that led to the loss of citizenship are no longer applicable, and subsequently issue a certificate confirming the resumption of South African citizenship.
Renunciation of citizenship
South African citizenship by birth is granted under specific legal conditions. A person qualifies as a citizen by birth if they were already a South African citizen before the commencement of the South African Citizenship Amendment Act, 2010. Citizenship by birth also applies if at least one parent was a South African citizen at the time of the individual’s birth, regardless of where the birth occurred. Additionally, individuals born in South Africa who do not hold citizenship or nationality in any other country may acquire citizenship by birth, provided their birth is registered under the Births and Deaths Registration Act, 1992. Furthermore, children born to parents with permanent residence in South Africa may be eligible for citizenship by birth if they have lived continuously in the country from birth to adulthood and their birth is properly registered.