Many foreigners have found themselves in a tricky situation where they've been banned from South Africa for overstaying their visa.

The amended South African Immigration Act No. 13 of 2002 came into effect on 26 May 2014 and with it came certain changes within the field of immigration law.

The most well-reported of these changes are the sections of the Act affecting illegal foreigners and the penalties incurred for overstaying a visa to South Africa.

The new law:

The fact is, many foreigners had become familiar with the practice of overstaying their visas by months at a time. When eventually leaving South Africa they would simply pay a fine for overstaying their visa.

The amended Act has stripped foreigners of the option of paying a fine and instead, those with expired visas are being declared undesirable upon departure from South Africa. This results in a ban from travel to South Africa of up to 5 years, depending on the duration of the overstay.

Despite the law change being implemented approximately a year and a half ago, it seems that vast numbers of foreigners are still overstaying their South African work visas and subsequently being declared undesirable.

One common reason for this is where a foreign worker has submitted a new visa application or an extension/renewal of an existing visa from within South Africa, yet no outcome has been received at the date of expiry of their visa.

While the Act deems anyone not in possession of a valid visa to be an illegal foreigner, many foreigners choose to risk remaining in South Africa in the hope that a positive visa application will be forthcoming.  Often foreigners elect to remain in South Africa due to being gainfully employed by South African companies.

Unfortunately, even the most prudently compiled visa applications can be rejected by the Department of Home Affairs, leaving the foreigner, and their company of employ, in an unjustifiable situation.

The rules:

Thus, even in instances where a foreigner has become illegal as a result of a delay in the finalisation of a visa application, it is in the best interests of all parties for the Applicant to cease work and where required, depart South Africa.     

What then?

Upon departing South Africa, an illegal foreigner will be declared undesirable and banned from South Africa. At this point, a visa overstay appeal may be lodged in which the foreigner appeals against the decision to ban him or her from South Africa. This appeal must be lodged within 10 working days from the date of departure from South Africa.

If the appeal is successful, a waiver will be issued to the foreigner permitting them to return to South Africa with immediate effect.

It is advisable for employers to recommend this route to any employees who find themselves illegally resident in South Africa.

Source: Attorney, Matthew Venturas: www.savisas.com