Introduction
The purpose of this article is to provide the reader with a basic and general understanding of what it means to be declared an Undesirable Person in the Republic of South Africa, what measures can be taken to avoid being declared undesirable and what can be done if you are declared undesirable.
What does it mean to be listed as an Undesirable Person by the Department of Home Affairs?
In terms of the Immigration Act, no 13 of 2002 as amended (no. 13 of 2011) (“the Act”) read with the Immigration Regulations of the Act, as amended (“the Regulations”), any foreign person who is declared undesirable by the Department of Home Affairs (“the Department”), will no longer be eligible to qualify for:
- a port of entry Visa,
- a Visa,
- admission into the Republic of South Africa; and/or
- a permanent or temporary residence permit.
(“Undesirable Person”).
The Act lists various circumstances and reasons upon which a foreign person would be declared as an Undesirable Person, which included, but not limited to:
- anyone who is identified as such by the Minister of Home of Affairs of the Republic of South Africa;
- anyone who has been judicially declared incompetent;
- an unrehabilitated insolvent;
- anyone who has been ordered to depart in terms of the Act;
- anyone who is a fugitive from justice;
anyone with previous criminal convictions without the option of a fine for conduct which would be an offence in the Republic of South Africa, with the
- exclusion of certain prescribed offences;
- any person who has overstayed; and
- any person whom commits an administrative offence in terms of Section 50 of the Act. Administrative offences include providing incorrect and/or fraudulent information, certificates, and/or documentation, or omitting important information to the Department upon application for any Visa and/or permanent residence.
Overstay Bans
For the sake of keeping this article brief we will only be addressing the most common reason for being declared undesirable namely overstay bans. While overstaying a visit may not be taken seriously by a visiting foreigner, the consequences of such, by merely overstaying by even 1 (One) day within the Republic of South Africa can warrant a person being declared as an Undesirable Person with a minimum ban of 1 (One) year from re-entering the Republic of South Africa.
Foreign travelers should always be vigilant to ensure that the immigration officers accurately record and capture their entry and departure dates in accordance with their travel itinerary, as well as ensure that any delays are immediately reported to the relevant embassy.
Should a person as a result of overstaying his/her visit be declared an Undesirable Person, he/she should immediately appeal the decision by making written representations to the Department.
Appeals
A person listed as an Undesirable Person as a result of any of the aforementioned reasons, will be notified by way of a declaration notice outlining the Department’s decision to declare them as such, and he/she will be prohibited from entering the Republic of South Africa, and will be barred from submitting any Visa and/or Temporary/Permanent Residence applications until this undesirability status is uplifted or until the prescribed ban has lapsed.
In this regard, the decision by the Department may be appealed by the person concerned by making written representations to the Director General of the Department to review/appeal his/her declaration as an Undesirable Person. In terms of section 8(4) of the Act, written representation to the Director General of the Department, must be made within 10 (Ten) business days upon receipt of the declaration notice and the applicant should provide reasons to show good cause why such undesirability status should be uplifted.
This appeal procedure thereafter undergoes a thorough investigation process by the Department’s immigrations officers and the applicant will be required to make full disclosure of all required information and provide reasons together with supporting documentation to the Department.
wIn the event the applicant’s appeal is unsuccessful, a subsequent appeal application can be made directly to the Minister of the Department, within 10 (Ten) business days upon receipt of the Director-General’s decision.
Useful tips
- Visa applicants must keep full record of documents provided to their assisting Visa consultants who have submitted their Visa applications on their behalf.
- A person must be meticulous in respect of their travel logistics, ensuring all dates correlate and are strictly complied with in accordance with the travel itinerary.
- Applicants are encouraged to plan trips well in advance and ensure that all travel documentation is on hand when visiting the Republic of South Africa.
Conclusion
The consequences of being declared an Undesirable Person can be very prohibitive and can result in the person being banned from the Republic of South Africa for a certain period of time. However, despite such a declaration, it is possible to have the undesirability status uplifted, through the relevant appeals processes.
Accordingly, should you find yourself in a situation like this then it is advisable that you contact an attorney who is au fait with the relevant processes, in order to assist with any adverse classifications.
Written by Ayanda Katjitae and Wesley Pons Checked by Alec Veitch
