What are your rights when it comes to immigration during the pandemic?

June Luna, of June Luna Attorneys, explores the issue for LexisNexis South Africa

If a foreign national is currently in South Africa on a valid visa, they are not required to leave the Republic. However, if they choose to leave, they will be entitled to do so and return to their country of citizenship.

Although countries have different rules regarding quarantine and/or isolation procedures, they cannot deny a citizen a right of re-entry.

Should their visa be about to expire, whether it is a tourist visa, or a longer-term visa such as a work visa, a foreign national is entitled to apply for an extension of that visa through VFS Global.

Any visa that is valid for longer than a period of six months will require a medical report, which will include a check for contagious diseases such as Covid-19.

Failure to renew a visa

However, in the case of a foreign national who does not renew their expiring visa, they will become illegal in the country. Once they leave, they will be declared an ‘undesirable person’ and will be banned for a period of one to five years, depending on the duration of time they have been in the country without a visa.

In order to appeal the overstay in terms of section 30(2) of the Immigration Act 13 of 2002 (Immigration Act), the foreign national would need to provide valid reasons for the overstay being tthat they were beyond their control. For example, one such reason could be that there were no flights home or that government departments in South Africa who are responsible for the renewal were closed.

Remedying an illegal status

Alternatively, a foreign national may remedy the illegal status in the country and apply to the government to waive the illegality through a ‘letter of good cause’, which would need to explain to the Department of Home Affairs why the foreign national allowed their visa to lapse.

The same principles as appealing an overstay apply here. The difference is that the foreign national does not have to leave the country and can remain here while the illegal status is remedied.

Covid-19 is not an excuse

It is advisable that all foreign nationals attempt to keep their status legal in the Republic.

Covid-19 will not be considered an excuse to remain in the country illegally and a foreign national will have to show all steps they have taken to remain legal while remaining in South Africa. Failing to do so will potentially mean a prohibition from the Republic or a criminal offence in terms of section 49 of the Immigration Act.