UNDESIRABLE STATUS
Section 30(1) of the South African Immigration Act, together with Regulation 27(3) of the Immigration Regulations, states that any individual who overstays their South African visa will be officially declared an “undesirable person”. The duration of this undesirable person status depends on the length of time the person has overstayed beyond their visa’s validity period. This regulation aims to enforce immigration compliance and manage visa overstays effectively.
THE NEGATIVE IMPACT OF UNDESIRABLE STATUS
Since the introduction of the Immigration Regulations in 2014, the Department of Home Affairs, through the Border Management Authority, has enforced more stringent penalties for individuals who overstay their South African visas. According to the Immigration Act, the Director-General of Home Affairs has the authority to declare any foreign national as an “undesirable person” if they exceed their permitted stay in South Africa as indicated by their temporary residence visa validity period. Notably, the specific circumstances or reasons behind the overstay are rarely considered when issuing this declaration. As a result, affected individuals often face severe consequences, including being barred from returning to South Africa, which disrupts their family life and employment opportunities within the country.
SA visa overstay of fewer than 30 days you will be prohibited to enter South Africa for a period of 12 months
They will also be given the status of “undesirable person”
More than 30 days, you will be prohibited to enter South Africa for a period of 5 years.
HAVE YOU OVERSTAYED YOUR VISA?
It is not uncommon for foreign nationals to inadvertently overstay their visa in South Africa due to unforeseen circumstances. However, all visitors must adhere strictly to the departure date specified on their visa. Failure to leave the country within this allotted period can lead to serious penalties, including a temporary ban on re-entry, which varies depending on the duration of the overstay.
Such penalties often cause significant emotional and financial stress, especially for those with family ties, business interests, or investments in South Africa. Understanding these regulations is crucial to avoid unintended consequences and ensure compliance with South Africa‘s mmigration law.
Would you like to expand on the specific penalties or offer advice on how to handle an overstay?
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UNDESIRABLE UPLIFTMENT
How to Appeal an ‘Undesirable Person’ Declaration for Visa Overstay in South Africa
Foreign nationals declared as undesirable persons due to visa overstays have the right to apply for an appeal through the Overstay Appeals Department at the Department of Home Affairs. This appeal process allows individuals to request the removal of their undesirable status and lift travel restrictions.
The Application Process
To start, applicants must submit a detailed motivational letter addressed to the Director-General of Home Affairs. This letter should clearly explain the circumstances that led to the visa overstay and provide strong reasons why the appeal should be successful. Common justifications include:
- Misinterpretation of immigration legislation or Home Affairs directives
- Unforeseen circumstances beyond the applicant’s control
Once the appeal is approved and the undesirable status lifted, the applicant may apply for a new visa from their home country, should they hold passports from a non-visa exempt country.
Processing Time and Legal Assistance
The adjudication of upliftment applications typically takes between 1 to 4 months, depending on the complexity of the case. Due to the legal nuances involved, it is highly recommended to seek expert legal assistance.
Our experienced legal team specialises in drafting compelling upliftment applications, ensuring that all critical details are clearly communicated to the adjudicating officials. This professional guidance significantly increases the chances of a successful and expedited outcome.
Why Act Quickly?
If you have been declared undesirable due to an expired visa, swift action is crucial. Without professional support, the appeal process can become complicated and prolonged, risking further travel restrictions, bans and absence from South Africa.
Xpatweb offers expert legal support to navigate the appeal process with the Department of Home Affairs, helping you restore your immigration status and regain the ability to travel and work in South Africa in the most timeous manner.
REGULARISATION/ADJUSTMENT OF STATUS
If an individual’s visa has expired but they have not been arrested for deportation or issued a departure order, they may apply to the Director-General of Home Affairs for authorisation to remain legally in South Africa while they pursue an application for legal status.
To qualify for authorisation to remain in South Africa after a visa has expired, applicants must:
- Demonstrate that they were unable to apply for a new status within the visa validity period due to circumstances beyond their control; and
- Show that they are now prepared and able to immediately apply for legal status.
Application Outcome and Processing Time
Once the application is reviewed and approved, the Director-General of Home Affairs may grant the foreign national authorisation to remain legally in South Africa while their status application is being processed.
Please note, the process of adjusting one’s immigration status can take up to 8 months or longer depending on individual case complexities.
Why Legal Assistance is Crucial
To avoid serious consequences such as being declared an undesirable person, arrest, or deportation—each carrying significant long-term effects—we strongly recommend consulting with our expert legal team. We specialise in assisting foreign nationals with applications to the Director-General to regularise their status and ensure they are eligible to apply for a valid South African visa.