CONSEQUENCES ATTACHED TO VISA EXPIRY
By Shelton Mahandana
Visas serve as vital documents regulating the stay of foreigners in South Africa. However, when a visa expires, it can lead to serious legal consequences and penalties. Understanding the implications of visa expiry is crucial for visitors and residents alike.
Before the implementation of the 2014 Immigration Regulations in South Africa, foreign nationals who exceeded their authorized stay were subject to a fine upon their departure from the country.
However, since the 2014 amendment, the Department of Home Affairs in South Africa has enforced stricter penalties for individuals who overstay their visit or allow their visa to expire. Regardless of the reason for overstaying, offenders face a declaration of undesirability, resulting in a ban from returning to South Africa for a specified period. The duration of the ban is determined by the extent of the overstay.
According to Section 30(1)(h) and Immigration Regulations, section 27(3) of the Immigration Amendment Act, No. 13 of 2011, an “undesirable person” is defined as someone who remains within the Republic (of South Africa) after the expiration of their visa.
Visa overstays entail significant penalties:
- If a foreign national exceeds their visa period by less than 30 days, they face a 12-month ban and are labeled as an ‘undesirable person’.
- Overstaying by more than 30 days results in a 5-year ban from South Africa, with re-entry only permitted after the specified period elapses.
The 2014 Amendment and Directive 9 confirm the stance of Regulation 27(3) in conjunction with Section 30(1)(h). These regulations stipulate that even if a foreign national applies for a visa extension, if their visa expires during the application process, they can still be deemed undesirable. Reasons for declaring someone undesirable may vary and are not exhaustive.
Appeal for overstay:
Individuals affected by these regulations, have the option to appeal through the Department of Home Affairs. This process, known as an ‘Appeal for Overstay,’ it allows those declared undesirable to request a review within ten days.
The department aims to address appeals within 48 hours, but the timeframe is not always guaranteed due to the complexity of immigration-related issues, which can prolong resolution.
The formal appeal process offers the affected individual a chance to justify why their undesirability status should be revoked and the ban lifted. It requires providing compelling reasons to support a change in immigration status in South Africa.
Factors considered for written representations include :-
- visiting family members,
- pending residency applications,
- employment contracts,
- academic pursuits,
- medical conditions, and any other personal circumstances that strengthen the appeal’s chances of success.
