The current South African Immigration Regulations came into effect on 26 May 2014. In this article the effects of these Regulations on people attempting to renew or obtain spousal visas are discussed.

The South African Immigration Regulations declare people travelling on expired visas as undesirable people. This is very controversial because many foreigners apply for the renewal of their visas well within the time limit of 60 days before the expiry thereof, but do not receive it in time. A Newlands family was torn apart when these Regulations barred Louise Johnson, the Danish-born spouse of a South African, from returning to the country after a family holiday in Namibia. Although Louise applied for the renewal of her visa in time, she did not receive the renewal in time and was declared as an undesirable person.

To obtain a spousal or life partner visa one must prove that the relationship has existed for at least two years before the application for this visa was made and that it still exists after the two years. An application for permanent residency can only be made after you have been married to or have been in a life partnership with a South African citizen or permanent residence permit holder for a continuous period of five years.

Visa renewals often take months to process. In the past, a receipt issued by the Department of Home Affairs, indicating that an application was pending, would suffice. The new regulations bring this to an end. Foreigners remaining in South Africa for anywhere between one and thirty days after the expiry date of their visas, will be declared undesirable for a period of 12 months. A second transgression within a period of 24 months will render them undesirable for a period of two years and should they overstay for more than 30 days, they will be classified as undesirable for five years.

Olivia Lock, a British national who is married to a South African, was prohibited from returning to South Africa for 12 months in May due to leaving the country on an expired visa whilst awaiting the outcome of the renewal of her visa. Shaima Herman, a United States citizen married to a South African, was also declared as an undesirable person after a two-year wait for the approval of her spousal visa. According to her husband, she had visited the Department of Home Affairs on 14 separate occasions and yet her visa remained delayed.

Haniff Hoosen from the Democratic Alliance stated: “Media reports and public outcry suggest that in less than a month the new regulations have already ripped apart families, dissuaded investors and led to the suspension and even cancellation of multimillion-rand film and tourism ventures.” He called for the regulations to be reviewed and debated by Parliament’s Portfolio Committee on Home Affairs.

The Minister of Home Affairs, Malusi Gigaba, asserted that the new immigration regulations are in the best interest of South Africa’s security – an insufficient excuse for inefficient policy. He further states: “Omissions and lack of definitions and criteria raised serious concerns about the new regulations, which would be subject to ‘misappropriation and abuse’ by the Department of Home Affairs and its officials.”

It is very likely that one can expect to see court cases challenging these regulations very soon. In the meantime, however, it would be better to avoid being declared an undesirable person by not travelling out of South Africa without a valid visa.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions or for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions exempted (E&OE).

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