Immigration Law Amendments

The Immigration Amendment Bill was recently tabled in Parliament by the National Assembly’s Home Affairs Committee.

The proposed amendments address the issue of foreigners who have illegally overstayed their welcome, by preventing them from being granted permanent residence or any other entry visa for as long as deemed appropriate.

Section 32 of the Immigration Act 13 of 2002 read with the Regulations provides that those illegal foreigners who have neither been arrested for deportation, nor ordered to depart and who wish to apply for a visa or permit after expiry, the opportunity to apply for authorisation by the Director-General, that they remain in South Africa pending the outcome of their visa application.

The amendments proposed and tabled will prevent any illegal foreigners who have overstayed their welcome from making an application for authorisation as described above in South Africa. The illegal foreigners, having overstayed their welcome, will not qualify for any visa or permanent residence permit, and may only apply from outside of South Africa: firstly for a waiver of such disqualification (only in exceptional circumstances, which are to be prescribed), and secondly for the required visa or permit. The Regulations will need to be amended to bring them in line with the proposed amended and prescribe these ‘exceptional circumstances’.

The Memorandum of Objects of this Bill records that “the administrative fines imposed were no longer serving as a deterrent”, which led to the introduction of Section 30 and the declaration of foreigners who overstayed their welcome, as undesirable. But due to the “interpretation challenges” of this section, it is proposed that the sanctions imposed under Section 50 by declaring a foreigner who leaves South Africa as “undesirable”, should instead be dealt with in terms of this new section 32(1A).