July 2014: Immigrants, Visitors and Parents: New Travelling Rules, New Risks

Extensive media coverage of the new Immigration Regulations suggests that they are very likely to be challenged in the courts as unworkable and unconstitutional, but bear in mind that in the interim they remain in force and you are going to have problems if you don’t comply with them.

The risks of non-compliance

The Regulations are complex and full of grey areas, and might even be changed at short notice, so if you are in South Africa or intend to enter the country on a “visa” or “permit” (most “permits” under the old rules are now called “visas”) take advice on your position now. Note in particular (a) the danger of being declared “undesirable” and prohibited from re-entering South Africa (note 2 below) and (b) the new rules relating to children (note 8 below).


Critical changes

Some of the critical changes to be aware of –

1. If you need to apply for a visa extension you must do so 60 days prior to expiry (up from 30 days previously).


2. If your visa has expired, the old system of just paying a fine when leaving the country has fallen away. Instead you risk being declared “undesirable” and prohibited from re-entering South Africa for –
   
   
   
   • 1 year if you overstay for 30 days or less,
   
   
   • 2 years if you overstay for a second time within 24 months,
   
   
   • 5 years if you overstay for more than 30 days.
   
   
   
   


3. If it happens to you follow the appeal procedure immediately.


4. You must apply for entry, transit or temporary residence visas in your own country.


5. Similarly, if you need to change your visa status (e.g. from a visitor’s visa or medical treatment visa to a temporary residence visa), you are – except in exceptional circumstances - going to have to leave the country and apply in your own country.


6. The rules applying to work, business, intra-company transfer work visas and corporate visas have changed, whilst “quota work” and “exceptional skills” visas are now replaced by a “critical skills” visa.


7. Applicants for spousal visas or permanent residence permits will need to prove that they have been in their relationship for at least two years.


8. Applicants for Life Partner visas or permanent residence permits will need to –


9. Provide proof including a notarial agreement, prescribed-form affidavit and financial support documentation that they have been in the relationship for at least two years “to the exclusion of any other person”, and


10. Attend separate interviews to confirm the authenticity of the claimed relationship.


11. Children: New rules apply to travelling with children and to unaccompanied minors – from 1 October children must have both a passport and an unabridged birth certificate even when travelling with both parents. Further documentation and authorisation are needed where only one parent or a non-parental guardian are travelling with the child or if the child is unaccompanied – get full advice on your particular circumstances. If you don’t already have all the necessary documents apply for them now – 3 months may seem like a long time but Home Affairs is going to be swamped.

Home Affairs has indicated that “Visa Facilitation Centres” will have opened in all provinces by the end of June. These centres will receive and manage visa and permit applications (except those which you are required to apply for in your own country – see above) but will it seems not give immigration advice. The visa and permit applications themselves will still be assessed by the Department of Home Affairs’ Head Office in Pretoria. Non-South Africans with legal residency permits in South Africa can apply for a visa or permit at these Centres. Zimbabwe nationals on Special Dispensation for Zimbabweans Project, Asylum and Refugee cases are directly handled by the Department of Home Affairs.

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