The Department of Home Affairs removed directive 43 of 2012 from the Immigration Regulations in February, which means that if a foreign national has been granted residence in South Africa, the preson would be penalised for overstay if an attempt is made to leave South Africa without a valid visa, law firm ENSAfrica director Zahida Ebrahim says.

“This is even the case where a foreigner’s application for residency status was submitted before the expiration of the existing permit,” she notes.

The directive previously allowed foreigners awaiting the outcome of applications for temporary residence permits to leave and re-enter South Africa, on the basis that they had an application pending in the country, by presenting their acknowledgement of receipt from the Department of Home Affairs as proof of their pending application.

“Upon presentation of that proof, a foreigner, including those from visa-exempt countries, was allowed to leave and re-enter the country even if his or her permit has expired and the individual has not obtained a visa,” she says.

Ebrahim adds that, although a person from a visa-exempt country is still authorised to re-enter South Africa, providing he or she has a return ticket and is entering South Africa for the purpose of visiting or to await the outcome of an application, that person is still precluded from working in the country.

“The new visa requirements, which came into effect in May this year, state that a nonvisa-exempt national will now be denied re-entry into South Africa if that person does not have a visa.”

She further adds that any foreigner who overstays his or her visa will automatically be declared an undesirable person and the period that a foreigner will be prohibited from re-entering South Africa ranges from one year to five years, depending on how long the person has overstayed his or her visa.

Ebrahim points out that it has become imperative that applicants allow for sufficient time for the processing of their application to renew temporary residence and for any delays that might be associated with the granting of such a renewal.

“Individuals dealing with such matters must seek advice well in advance of any travel needs that could overlap with residence application processes and visa expiry,” she concludes.