You have overstayed your Visa, now What

You have overstayed your Visa, now What

Overstaying ones visa is a common occurrence among expats in South Africa and in recent months overstaying one visa has moved from being a minor inconvenience to a possible criminal offence with potentially serious ramifications. The changes brought about by the new immigration laws have made overstaying ones visa a very serious affair which needs a careful and smart approach to remedy. In this article we will explore the effect of overstaying ones visa and what steps to take to correct this now serious matter.
Effect of an overstay
An individual who remains the republic after his or her visa has expired is in violations of the Act. The immigration Act describe such individual as illegal Foreigners. Illegal foreigner are dealt with in terms of section 32 which provides:
32(1) any illegal foreigner shall depart, unless authorised to do so by the director general in the prescribed manner to remain in the republic pending his or her application for a status
32(2) any illegal foreigner shall be deported.
The seriousness of an overstay is clear from the section, anyone who is considered an illegal foreigner must be deported and there are no exceptions. In addition section 49(1(a) makes it a criminal offence to remain in the republic in contravention of the Act and on conviction the penalty is imprisonment for a period of not more than 2 years or a fine. In addition section 30(1) (h) renders one departing the republic on an expired status an undesirable. So what recourse does one have when they find themselves in this situation? The answer lies in the same section 32(1), the authorisation issued by the Director General.
Legalization of an Overstay
Section 32(10 read with regulation 30 provides for a mechanism to cure an overstay a potentially avoid any sanction for the overstay. This process is commonly referred to as legalisation and is given expression in the following section:
Reg30(1) reads – upon requesting authorisation as contemplated in section 32(1) of the Act, an illegal foreigner who has neither been arrested for the purpose of deportation nor been ordered to depart and who wishes to apply for a status after the expiry of his or her visa, shall-
(a)Demonstrate, in writing ,to the satisfaction of the Director General that he or she was unable to apply for such status for reasons beyond his or her control and;
(b)Submit proof to the Director General that he or she is in a position to immediately submit his or her application for status.
Reg 30(2) The Authorization to remain in the Republic as contemplated by section 32(1) of the Act shall be granted on Form 20….
In order to legalise an overstay 3 points must be complied with.
1.You must neither be arrested for purposes of deportation nor be ordered to leave. Both instances occur when you have been detected by Home affairs officials. Therefore you can only avail yourself to legalisation if you have not been detected by immigration enforcement officials.
2.Demonstrate in writing, commonly referred to a good cause. The applicant must demonstrate that the overstay was not intentional but a consequence of factors beyond the control of the applicant? It is not enough to simply overstay for no justifiable reason and approach the Director General where no good cause exists.
3.The applicant must show that he or she is in a position to submit his or her application for a status immediately upon being granted the authorisation.
Once the authorisation is given it will be issued to the applicant on a form 20. The applicant then uses the form 20 to apply for the visa. In practice however giving effect to this last part of the legalization process is quite a challenge.
If you require assistance with Legalization and have any questions on the topic please feel free to contact our offices for specialist advices.

German arrivals on the up

German arrivals on the up
11 Sep 2017 – Tourism Update
German arrivals continue to grow, even during SA’s winter months.
German visitors to South Africa have increased by 15% according to the latest report released by Statistics SA.
The German market has shown a steady increase over the last few months, with arrivals up by 24% for the month of June compared with June last year.
Growth in May was 5% and April 15.91%.
There are many contributing factors to the steady increase in arrivals from this key source market, one being the attractive exchange rate when visiting SA, the country’s warmer climate and the similarity in dialect.
Peter Munzig, Managing Director of Travel Management & Consulting in Germany, said there had been a substantial increase in 2016 vs. 2015 in German arrivals, and tour operators had reported that they expected another increase this year.
According to Munzig, South Africa is popular for many reasons, including game viewing, the country’s diversity, countryside hotels and even its city life.
“The South African winter is a perfect time for tourists to visit, especially the Kruger National Park, as there are reasonable bus tours for those who prefer to travel in groups. A plus is definitely that you do not need any vaccinations for the Cape,” said Munzig.
“If the exchange rate continues to be favourable for foreign tourists, there is no limit to further increases in visitors,” concluded Munzig.
The Western and Eastern Cape are firm favourites for German visitors.
Minister of Tourism, Tokozile Xasa and South African Tourism (SAT) CEO, Sisa Ntshona, attended the Internationale Tourismus-Börse (ITB) Berlin earlier this year.
At the trade show there was a panel discussion on SA’s growth strategy and SA’s status as trend destination 2017, as well as the role Germany plays for the South African tourism sector, highlighting the importance of Germany as a key source market.
“In 2016 we attracted more than ten million tourists, who came to SA from various parts of the world, which is a 13% surge when compared with tourist arrivals in 2015 and well above the global average of 3.9%. Of these, 31 000 were Germans, making Germany our second-largest European source market after the United Kingdom,” added Ntshona.
“The number of German tourists coming to SA grew at an impressive rate of 21.5% and for this reason we are planning to train even more local tour guides to add to the 400-plus who already speak German in order for us to better cater for German tourists.”
Ntshona highlighted that the German tourism industry had rewarded South African Tourism’s outstanding service to travel agencies with a silver award at its Globus Travel Awards in January.

SA home affairs minister outlines fees, terms of Zim permits

SA home affairs minister outlines fees, terms of Zim permits
8 September 2017 -IOL
Pretoria – Home Affairs Minister Hlengiwe Mkhize on Friday announced terms and conditions of the new four year non-renewable permit regime for close to 200 000 Zimbabweans based in South Africa, under the dispensation termed the Zimbabwean Exemption Permit (ZEP).
“Conditions of the new Zimbabwe Exemption Permit dispensation entitles the holder to work, study and, or, to conduct business, if that person is an entrepreneur. It’s important to emphasise that it [the ZEP] does not entitle the holder the right to apply for permanent residence, irrespective of the period of stay in the Republic of South Africa. It will neither be renewable or extendable,” Mkhize said as she addressed a press briefing in Pretoria.
“The ZEP does not allow the permit holder to change conditions of his or her permit while in South Africa. A permit holder who wishes to convert their status to any other mainstream visa should apply timeously for such a visa from within South Africa, provided they meet all the requirements for that visa. We have quite a number of visa regimes … if, for instance, a person wants to be considered under the category of a student, or as studying, they have to come out of this one, and there are different conditions attached to that one. That would help a lot because there (the study permit) the period is fixed to a degree or diploma.”
Mkhize emphasized that the South Africa government believed that migrants play an important role in respect of the country’s economic development, and enriching social and cultural life.
She said the 197,941 holders of the current Zimbabwe Special Permit (ZSP), which expires in December, are allowed to travel across borders with expired ZSP permits and receipts showing they have applied for the ZEP, until the South African government has issued them with the ZEP permits.
“This new ZEP will begin on the 15th of September 2017. People have a week now, they have been expecting it and nobody will say it’s a short period. The ZEP is open and valid for ZSP permit holders only … the people who assessed the ZSP in 2014 and they have not been deported for criminal activities and so on, those are the people we are inviting to apply. We advise prospective applicants to submit applications online from September 15, through the VFS website,” said Mkhize.
The applications are made on www.vfsglobal.com/ZEP/SouthAfrica/com.
The minister said the cut-off date for submission of applications is November 30. An administrative fee of R1 090 will be charged. From October, the applicants will be allocated appointments to submit fingerprints and supporting documents physically at VFS Global offices in Durban, Cape Town, Port Elizabeth, Johannesburg, Rustenburg, Kimberley, Polokwane, Nelspruit, Bloemfontein and George.
“I trust that the ZEP will go a long way in assisting the Zimbabweans to rebuild their lives as they prepare, at work, in business and in educational institutions, for their final return to their sovereign State – Zimbabwe – in the near future,” said Mkhize.
Chargé d’Affaires at the Zimbabwean High Commission in Pretoria, Tamuka Robert Nyamuranga, extended gratitude to the government of South Africa “for the generous offer that they have made to thousands of Zimbabweans”.
“This is an act of solidarity, an act of good neighbourliness. I know there are many Zimbabwean nationals who have been living and working in South Africa, and they have made a meaningful contribution to the development of South Africa and to the implementation of the National Development Plan,” said Nyamuranga.
“I would like to call on fellow Zimbabweans, those who hold the ZSP, to come forward as soon as VFS opens for applications on September 15, and avoid the last minute rush that normally occurs in situations like this. I want to thank the minister once more.”
Under the special dispensation granted by Pretoria in 2014, Zimbabweans who had previously been granted permits under the Dispensation for Zimbabweans Project were allowed to re-register for the “non-renewable” three-year ZSP.
African News Agency

Zim special permit application process to reopen

Zim special permit application process to reopen
SA News – 04 August 2017
Cabinet has approved the reopening of the application process for the current Zimbabwean Special Permit holders, under certain conditions.
The initial Special Dispensation for Zimbabweans was approved in April 2009 to document Zimbabwean nationals who were in South Africa illegally.
Their permits expire on 31 December 2017.
The ZSP allows applications from Zimbabweans with a valid Zimbabwean passport, evidence of employment, business or accredited study and a clear criminal record and if successful grants them a permit to stay and work, study or run a business in South Africa.
About 200 000 Zimbabweans in possession of the special permit are currently working or studying in the country.
The cut-of date for receiving ZSP applications was December 2014. The applications were received by VFS Global and adjudicated over by the Department of Home Affairs.
The special permits were introduced to allow Zimbabweans a three-year residency in South Africa.
A similar initiative was granted for the Basotho nationals who were in the country illegally. The LSP allows for Lesotho nationals to live in South Africa legally.
At the time of the introduction of the LSP, the Department of Home Affairs said the special permits were only for those Lesotho citizens registered in the National Population Register of Lesotho.
South Africa granted an amnesty to Basotho in possession of fraudulently acquired documentation, so that they can surrender such documents, without the fear of arrest or deportation. Applicants receive amnesty letters as proof. – SAnews.gov.za

Jul 3, 2017 - Business Permit    No Comments

Constitutional Court protects rights of detained immigrants

Constitutional Court protects rights of detained immigrants
The Citizen – 30.6.2017
This despite the fact that it will now become very expensive to process the arrests of undocumented migrants.
Lawyers for Human Rights (LHR) has welcomed a unanimous Constitutional Court ruling upholding the rights of all detainees – also alleged illegal immigrants – to access our courts.
The Constitutional Court ruled that sections 34(1)(b) and (d) of the Immigration Act were inconsistent with the constitution and therefore invalid and gave parliament 24 months to issue new legislation to correct the defects in the act.
Although the ruling of invalidity was suspended, the court ruled that pending the enactment of amended legislation, any undocumented foreigner detained under section 34 of the act must be brought before court in person within 48 hours from the time of arrest or not later than the first court day thereafter if the 48 hours fall outside ordinary court days.
This also counts for foreigners currently already in detention.
The court ruled that the rights guaranteed in section 12 and 35 of the constitution – the right to challenge in court a detention within 48 hours of arrest and the right to be protected against arbitrary detention without trial – applied to foreign nations as well as South African citizens.
LHR said in a statement the ruling affirmed that all persons living in South Africa were protected by the law and not subject to arbitrary violations of their rights by authorities.
“This ruling will most importantly protect vulnerable individuals whose detention have in the past fallen beyond the reach of judicial oversight, resulting in widespread rights violations,” the rights group said.
LHR thanked Legal Aid South Africa, without whose financial support they would not have been able to wage a successful battle against state injustice, as well as People Against Suffering, Oppression and Poverty (Passop), which intervened in the application as a friend of the court.
LHR took the matter to the Constitutional Court for confirmation after the High Court in Pretoria ruled that the sections of the act were invalid, but Home Affairs appealed the ruling, arguing that the sections were consistent with the constitution and denying that arrested foreigners enjoyed the same protection under the constitution.
The Constitutional Court dismissed the state’s appeal and upheld the LHR’s argument that the legislation illegally authorised administrative detention without trial for purposes of deportation in violation of the constitution.
The organisation had instituted 115 cases against home affairs since 2009 and provided free legal assistance to arrested and detained foreigners who were in some instances detained without trial for periods of up to six months or longer.
Judge Chris Jafta said the LHR’s papers painted an unfortunate picture of widespread disregard for statutory requirements, which led to a violation of the rights of vulnerable people.
These lapses revealed shortcomings enacted by the Immigration Act in a system that was supposedly designed to promote dignity and human rights.
The state argued that it would increase costs as about 500 foreigners would have to appear in court daily countrywide, which would require a massive number of magistrates, but Judge Jafta said the mere increase in costs alone could not justify denying detainees the right to challenge the lawfulness of their detention.
He said an increase in costs would be unavoidable if each foreigner decided to exercise their right to challenge the decision to deport them, but the state should have budgeted for these costs, which are necessitated by the implementation of the act.
The court found that the reasons advanced by the state fell woefully short of justifying the limitation created by the impugned provisions of the act.
Judge Jafta stressed that arrest and detention without trial had been commonly used to suppress opposition to laws and policies of the former apartheid government, with detainees in most cases being beyond the reach of judicial oversight and subjected to torture and other forms of violence.
The constitution included section 12 in the Bill of Rights to outlaw this abuse of power and deprivation of personal freedom by guaranteeing everyone physical freedom and protection against detention without trial, Judge Jafta said.

Jun 28, 2017 - Business Permit    No Comments

Home Affairs faces 50 new lawsuits every week

Home Affairs faces 50 new lawsuits every week
27 June 2017 – IOL

Johannesburg – The Home Affairs Department is being slapped with about 50 cases of litigation on a weekly basis, deputy director-general for institutional planning and support Thulani Mavuso said.
Now the department is hiring legally qualified people who will be placed in the directorates of immigration affairs and civic services to monitor and act quickly on litigation-related issues.
“On a weekly basis we have to respond and instruct state attorneys to defend matters. Some of them are opportunistic litigations,” Mavuso said.
He made the comments after department offices in Mbombela, Mpumalanga, were closed when the sheriff of the court attached its goods last month.
This was after a foreign national took the department to court for wrongful arrest and was granted a default judgment of R150 000, which the department is now seeking to rescind.
It has been reported in the past how the department wasted millions in taxpayers’ money on court battles.
The department had revealed in a parliamentary reply that it spent R46.3 million on legal costs in 2011/2012, and R21.3m was spent in the previous financial year.
In 2014, out of 404 judgments that were granted by the courts, 385 were made against the detentions of illegal foreigners at the Lindela Repatriation Centre in Krugersdorp or failed asylum seekers who filed judicial reviews against such rejections.
Mavuso said there were instances where people fly into OR Tambo International Airport, only to be met by lawyers, ready to take the department to court.
“It is quite bad in a sense that those opportunistic litigations, actually in the area of immigration, are quite huge,” Mavuso said.
“The same applies when people are arrested for fraudulent documents or documents that are invalid and then taken to Lindela,” he added.
“You have lawyers who make Lindela a hunting ground for those cases,” he said.
Mavuso also said the high volume of litigation was creating huge administrative issues in the department.
“People use the law to say these are their constitutional rights and we need to defend the cases. Sometimes we defend things which are actually a waste of money.”
Deputy director-general for civic services Vusumuzi Mkhize said the capacity of the department was being strengthened.
“We recently created posts for the core business in immigration and civic to have a legal person to deal with any matter relating to ligation,” Mkhize said.
When the department presented its budget to Parliament earlier this year, it noted the lack of capacity in its legal services, risk management, information services, financial management and counter corruption and security services.
Its 2017/18 annual performance plan said there was a phased restructuring of staff according to a plan proposed by a consulting firm to increase the proportion of specialists and prioritise posts.
Political Bureau

Jun 28, 2017 - Business Permit    No Comments

Industry reacts to Rwandan permit increase

Industry reacts to Rwandan permit increase
27 Jun 2017 – Tourism Update
Rwanda’s permit hikes may be in response to the surge in high-end tourism development.
The recent doubling of Rwanda’s gorilla permits from $750 to $1 500 has resulted in concerns from some operators over the potential impact of the increase.
For Debbie Addison, Director of Wild Frontiers, the permit increase means “turning a dream into something that may be unattainable for people who really want to see gorillas in their natural habitat”.
Betty Jo Currie, Founder of Currie and Co Travels shares a similar view. “I’m sad to see a continuing polarisation between ‘haves and have nots’. This will clearly affect people for whom this is a bucket list item but who were travelling on a budget.”
Addison and Currie say although the increase is high, some guests are not concerned. They say their clients are concerned about value rather than cost and will continue to book gorilla trekking experiences. But Addison adds that some travellers have been “put off by the more expensive permit price”.
She says it is rare for guests to book Rwanda on its own. “Sadly very few guests book Rwanda as a destination in its entirety. I believe a lot of guests went there as it was an easy add-on to Kenya and Tanzania’s ‘big game’ safaris. Most of our bookings to Rwanda are ‘in and out’ gorillas.”
An indirect motivation behind the increase may be the rise in luxury operators building in Rwanda. Addison says: “The new lodges’ price points attract clientele that can afford the $1 500 permit.” Currie agrees: “I suspect that rather than being behind the fee hike, the new luxury lodges have proved to the Rwandan government that the market will support a fee increase.”
However, even though some businesses may be able to absorb the price increase, it is likely to have a negative effect on middle and lower range tourism options. “The lodges, the local operators, even the staff working directly with gorillas (trackers/porters etc). As the volume of people (tourists) now able and willing to enjoy this activity may reduce, this will likely have a knock-on effect throughout the industry,” says Addison. “If numbers of guests trekking reduce, so will the share of local income from those guests. Curios, porters, staff working in tourism in the area will start to feel the reduction as we move into low season this year, and into 2018.”
Addison says this could be positive for Ugandan tourism. “Uganda offers a more ‘rounded’ safari experience, and generally people will go there to see primates, birds, game, and culture and spend up to 10 days or more, taking in the country and its offerings. With Uganda recently confirming prices at $600 for the next two years, I believe that the country will pick up business from Rwanda.”

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