Light on ‘undesirable’ immigration law
9 April 2018
The Immigration Amendment Act No 13 of 2011 and the new regulations under the act provide for what is termed the “undesirable person”.
Essentially, a foreign national who falls within a category listed in section 30 (1) of the act can be declared an undesirable person by the Department of Home Affairs.
The following are eight instances under which a foreign national can be declared undesirable:
Any foreign national who:
l Is likely to become a public charge.
l Is declared as such by the minister of home affairs.
l Is found to be judicially incompetent.
l Is an unrehabilitated insolvent.
l Is ordered to depart from South Africa.
l Is a fugitive from justice.
l Has previous criminal convictions without the option of a fine for conduct that would be an offence within the republic.
l Has overstayed on a permit issued by the department (section 30(1)(h).
This article focuses on section 30(1)(h), since it is a new category that has effectively removed the imposition of fines upon foreign nationals who remain in South Africa on expired permits.
The period of the declaration is determined by examining the period overstayed. Foreign nationals who overstay in South Africa for a period not exceeding 30 days will be declared as undesirable for a year. Foreign nationals who overstay by more than 30 days will be declared undesirable for five years.
The department has also introduced Directive 9 of 2014, which confirms regulation 27 (3) and stipulates that people who overstay on their permits will be declared as undesirable.
In Johnson and Others versus minister of Home Affairs and Others, Re: Delorie and Others versus Minister of Home Affairs and Another (10310/2014, 10452/2014)  ZAWCHC 101 (30 June 2014) (Johnson case), the Western Cape High Court considered the impact of section 30 (1) (h), regulation 27 (3) and the directive on two families separated due to declarations of undesirability.
The court elected to consolidate the Johnson and Delorie applications since they both sought to urgently remove the “undesirable” status of two foreign nationals who had left SA on expired permits.
The Johnson case concerned Louise Henrikson Egedal-Johnson a Danish national who, since 2009, has been married to Brent Johnson, a South African. The couple had one child. Since her marriage to Johnson, Egedal-Johnson remained in South Africa on a relative’s permit, which was issued by Home Affairs on February 28, 2012. The permit expired on February 27 this year. On February 10, Egedal-Johnson applied for extension.
By May 28, her application had not been adjudicated. On May 28, Egedal-Johnson and her family left South Africa. When departing, the immigration officials at Cape Town International Airport issued Egedal-Johnson with a form declaring her as an undesirable person since she had overstayed in South Africa for about 90 days.
When Egedal-Johnson attempted to re-enter the country, she was refused entry by immigration officials and was subsequently deported to Denmark with her child.
The Delorie application concerned David Ross Henderson, a Zimbabwean national who was married to Cherene Theresa Delorie, a South African permanent resident. The couple had two children. Henderson remained in South Africa on a valid work permit, which expired on April 21 this year. When he left on a business trip to Nigeria, immigration officials at Cape Town International Airport declared him an undesirable person. Henderson was unable to return.
It is within the context of these facts that Egedal-Johnson and Delorie, on behalf of their families, applied for urgent relief from the Western Cape High Court.
Judge James Yekiso made the following key findings: Shortly before Egedal-Johnson and Henderson had departed the country on May 28, the immigration laws relating to undesirable people had fundamentally changed and the introduction of section 30 (1) (h) meant that foreigners who overstayed on expired permits could be declared as undesirable.
Their statuses meant that Egedal-Johnson, Henderson and their respective families were suffering prejudice. It was held that their statuses be suspended, thus they were permitted to enter and remain in the country.
Subsequent to the enactment of the law and regulations, Home Affairs introduced an appeal process for people who were declared as undesirable due to expired permits.
The formal appeal must include:
l Written representations stipulating reasons why the declaration should be removed.
l A copy of the declaration of undesirability.
l Copies of the foreigner’s passport.
l A copy of the acknowledgement of receipt if the foreigner has applied for an extension of a visa.
Home Affairs indicated that appeals will be adjudicated within about 48 hours, but there is no guarantee. Employers are urged to inform their foreign staff of the act.
Foreign nationals who seek the extension of existing visas must ensure that such applications are made at least 60 days before their existing visas expire. A failure to do so may result in such foreign nationals being declared undesirable.
Light on ‘undesirable’ immigration law