Harsh overstay provisions now being implemented

IMPACT – HIGH

What is the change? Provisions in South Africa’s newly amended immigration laws harshly punish foreign visitors and expatriates who overstay their permits or visas, including those with pending applications whose permits have expired while their applications are still under adjudication by the Department of Home Affairs.

What does the change mean? Effective immediately, all foreign nationals with pending applications whose permits have expired must not under any circumstances attempt to travel out of the country or they may be declared “undesirable persons.” This would bar them from returning to the country for up to five years (depending on the length of time that has lapsed since their permit expired). Although it is possible to apply for a waiver from the declaration of undesirability, this process can take many months and is at the discretion of the Minister of the Department of Home Affairs.

• Implementation timeframe: Immediate.
• Visas/permits affected: Work permits and all other permits and
• Who is affected:All foreign nationals.
• Impact on processing times: None.
• Business impact: Business could be severely disrupted if foreign assignees and/or their accompanying family members are declared “undesirable” and barred from re-entering the country.
• Next steps: Foreign employees and their family members who have submitted an application from within South Africa and whose existing permits have expired should not travel outside the country under any circumstance sunless or until they are in possession of their new, amended or extended permits.

Background: The much anticipated amendments to the Immigration Act went into effect last Monday, May 26, and this is one of the changes to curb abuse of the system.

BAL Analysis: Employers who have submitted applications on behalf of foreign nationals and/or their family members from within South Africa should notify them that if their existing permits have since expired, they must not travel out of the country under any circumstances.

This alert has been provided by the BAL Global Practice group and our network provider located in South Africa. For additional information, please contact your BAL attorney.

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