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IMMIGRATION LAW - FAQ's             Back to home page

 

The Immigration Act (no 13 of 2002)  deals with immigrants and migrants and uses a licence fee to manage the process of allowing foreigners to work and live in South Africa.

Whether you are an asylum or refugee seeker, or someone who wants to apply for citizenship or permanent/temporary residency, an experienced Immigration Attorney can give you the necessary legal advice and handle the application on your behalf.

  1. What constitutes ‘legal stay and entry’ in South Africa?
  2. What is a ‘permanent residence’ permit?
  3. What is a ‘temporary residence’ permit?
  4. What is the legal position of asylum seekers and refugees?
  5. How does one apply for asylum?
  6. What happens if my application for asylum is refused?
  7. What rights do asylum seekers have?
  8. How does one apply for a refugee permit?
  9. What are the rights and duties of refugees?
  10. How can a person obtain citizenship in South Africa?
  11. What is contained in the new regulations which will bring the Immigration Acts of 2007 and 2011 into force? (not yet law)

 

1. What constitutes ‘legal entry and stay’ in South Africa?

 

The Immigration Act says that every person who is not a South African citizen and who wants to come to South Africa must enter through a legal port of entry. This means a border crossing by road or railway, or an airport or a sea port where there is proper border control with immigration officials and police persons as well as custom officials. This is applicable for both entering and departing the republic. People who enter otherwise are illegally present in the country and if they are found they will be deported.

In order to come legally to South Africa a person must have a valid passport from his/her country. Such a person must also have some type of permit to enter South Africa. If this is not the case, his/her passport must be valid for not less than 30 days after expiry of intended stay.

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2. What is a permanent resident permit?

 

This is a permit that allows one to stay permanently in South Africa, while remaining a citizen of another country. According to the Immigration Amendment Act such a permit can be issued on condition the holder is neither prohibited nor undesirable.

There are 4 ways of obtaining a permanent residence permit, if the person:

  • Has been the holder of a work permit for at least 5 years, and has received an offer of employment.
  • Has been the spouse of a citizen or permanent resident for 5 years.
  • Is a child of a permanent resident under 21 years old.
  • Is a child of a South African citizen.

The applicant must be of good character, and a ‘desirable inhabitant’ in South Africa, and not likely to take a job for which there are enough South Africans available. The committee will pay special consideration to applicants who are aged or destitute or disabled dependant of a permanent resident, as well as the husband or wife of a South African citizen of a permanent resident. The Department of Home affairs may not refuse to issue work permits to foreign-born spouses of South African citizens without a very good reason. If the permit is refused the applicant may ask the Central Board to review the provincial committee’s decision but it does not have to do so.You will have to contact an attorney urgently to see if there can be any court challenge to the decision.

The Constitutional Court has said South Africans have a right to live in the country they were born in with the partner of their choice. This means the government cannot refuse to give immigration permits to foreign-born spouses (husbands and wives) of South African citizens.

Withdrawal of a permanent residence permit can take place in circumstances including the following:

  • If convicted of any listed offence.
  • Has been absent from the republic for more than 3 years unless exempted
  • Has not taken up residence within one year of issuance of permit.

Retired people – have a choice of 2 visa options:

Short term visa - A permit for retired persons which can be made on a temporary basis and which is valid for 4 years at a time.
Permanent Residency – and an and an independent financial persons’ permit- for permanent residents only.

Applications for temporary and permanent residence permits based on retirement must be able to offer proof of an income of at least R37 000 a month, although it’s also acceptable at various missions for temporary permit applications to prove that they have at least R1.776m in an account anywhere in the world. Financially independent retired people may apply for permanent residence on the basis of net worth if they can demonstrate a net worth of at least 12m and, upon approval, an amount of R120 000 is payable to the Department of Home Affairs before the permit is issued to the applicant. Foreign buyers who will experience the most difficulty are families with no ties to SA, who want to relocate permanently. Unless the applicant is independently wealthy their success will depend upon the skills and qualifications they offer and whether there is scarcity of people with their experience in SA.

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3. What is a temporary residence permit?

 

A temporary resident permit allows a foreigner who is not the holder of a permanent resident permit to enter and stay in South Africa for a limited period of time.

A person who wants such a permit must apply before coming to South Africa. If the permit is refused there is no review procedure. There are many different types of permits which can be applied for .These are described in the Immigration Act, Sections 11 to 23. Some of these permits, such as work, business and corporate permits can be complex-law firms and attorneys practising immigration law can be of invaluable assistance to you and help you avoid problems that may arise later.

  • Visitor’s permit or tourist visa
  • Diplomatic permit
  • Treaty permit
  • Business permit
  • Crew permit
  • Medical treatment permit
  • Relatives permit
  • Work permit
  • Corporate permit
  • Retired persons permit
  • Exchange permit
  • Some permits such as business, work and corporate permits can be complex, it is advisable to contact an attorney dealing in immigration law before making application.

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4. What is the legal position of asylum seekers and refugees?

 

A Refugee is a person from another country who has fled to South Africa to escape war or persecution, and who has been granted refugee status under The Refugee Act No 130 of 1998.

An asylum seeker is a person from another country who has fled to South Africa to escape war or extreme violence, and is formally seeking refugee status but has not yet been granted it.

An undocumented foreign national is a person from another country who has entered South Africa and is in the country illegally, because they have not engaged any formal processes to legalise their residence-or they have not engaged successfully. This person is undocumented in South Africa.

The Refugee Act No 130 of 1998 (which applies to refugees living in South Africa) says that South Africa cannot refuse to allow a foreigner into the country or force them to return to their own country if in their own country:

  • They would be persecuted because of their race, religion, nationality, political opinion or because of sexual orientation.
  • Their lives would be in danger because of war or serious disruption of public order.

    With more than 800 000 cases South Africa has more than a third of the world’s pending refugee applications. Most come from Zimbabwe, Democratic Republic of Congo, Bangladesh, Pakistan and India. In 2014 and the first half of 2015 the Department of Home Affairs turned down 81% of refugee applications, compared with the international average of 21% - by the end of the first quarter in 2015 , 2406 people had been granted asylum and for the rest of the year only 93 applications were accepted. Critics say that the rejection rate is so high because it is used as a ‘migration management method’ to keep people out of the country and that all refugees are seen as economic migrants – the Department of Home Affairs denies that there is such an objective.

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5. How does one apply for asylum?

 

At the place where the person seeking asylum enters South Africa, he or she will be granted a transit permit which is valid for 14 days. A person who wants to apply for asylum must go to the Refugee Reception Office during this time to submit an Eligibility determination form. Once the person has made an application for asylum he or she will receive an Asylum Seeker Permit, often referred to as the Section 22 permit which can be renewed from time to time, and will be valid for 6 months and then can be renewed.

The permit can also be withdrawn if:

  • The application goes against any of the conditions of the permit
  • They find that the application is not based on the truth
  • The application for asylum has been rejected

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6. What happens if my application for asylum is refused?

 

If an application for asylum is rejected the person must be given reasons in writing within 5 days of the refusal. If asylum is refused on the grounds that the application is ‘manifestly unfounded, fraudulent or abusive’, the Standing Committee for Refugees will review the decision to refuse the asylum.

An asylum seeker can lodge an appeal with the Appeal Board once he or she has been told that the application has been refused. The applicant must be allowed to bring an attorney to the Appeal Board if he or she requests this.

If a permit has been withdrawn the person seeking asylum can be arrested and detained until their application for asylum has been finalized.

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7. What are the rights of asylum seekers?

 

 An asylum seeker has the right to healthcare and access to public health care services

  • Cannot be refused access to education. As a holder of either a Section 22 or a Section 24 permit, a child is entitled to access at public schools.

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8. How does one apply for a refugee permit?

 

 The applicant will be interviewed for their Refugee Status Application. They may bring witnesses, or a person who is able to speak English to assist them to tell their story. They must also bring supporting documents such as:

  • Birth certificates
  • Photographs
  • Personal records

Research done about conditions in their home country, such as newspaper clippings.

They will be notified of the outcome of their application within 180 days.

If the application is successful, the person will be granted refugee status and a Section 24 permit which is valid for 2 years.

He or she will immediately be issued with a Refugee ID in terms of Section 30 of the Refugee Act.

The Section 24 permit must be renewed at the Refugee Reception Office 90 days before the expiry date.

If the application for refugee status is declined, the person will be given 30 days to submit an appeal to the Refugee Reception Office or leave the country. In the appeal the person must state why he or she should not go back to their home country.

A person can appeal on the basis that:The correct procedure for processing the application was not followed.

  • The facts on the application were not taken into consideration.
  • The person who interviewed him or her were biased.

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9. What are the rights and duties of refugees?

 

 A refugee:

  • Has all the rights contained in the Bill of Rights, except rights specifically reserved for citizens, for example the vote.
  • Can apply for an immigration permit after living in South Africa for 5 years after the date that he or she was given asylum.
  • Can get an identity document and passport.
  • Can look for work, and the Basic Conditions of Employment Act applies if employed.
  • Can use the basic health care services and primary education facilities.
  • May apply for social grants, mainly the Disability Grant and Foster child grant.

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10. How can a person obtain citizenship in South Africa?

 There are 3 ways in which one can be a citizen:

  • By birth or descent - Citizenship by birth and descent are legal rights for anybody who can prove the facts of birth and parentage
  • By naturalization-citizenship by naturalization is not a legal right. It can be granted or refused by the Minister of Home Affairs. Naturalisation is the granting of citizenship to someone who has come to South Africa from abroad and has stayed in this country for some time.
  • An experienced immigration attorney can assist you in your application for citizenship.

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11. What is contained in the new regulations which will bring the Immigration Acts of 2007 and 2011 into force? (not yet law)

 

The regulations will tighten up on abuses such as marriages of convenience and making it riskier to break visa conditions.

There are four visa types that will apply to skilled workers wanting to work in SA:

 

  • The intra-company visa, most commonly used by multinationals and large corporations to rotate management around the world and to import specialized skills, and will now be valid for four years rather than two.

 

  • The corporate visa, most commonly used to import skilled people for large infrastructure projects as well as well as to import migrant labour for the mining industry. The conditions for this visa- as well as for the general work visa, the third type of work visa envisaged in the regulations – include that a company must first show that it has performed a ‘diligent search’ and has been unable to fill the position concerned with South Africans. To prove that a ‘diligent search’ has been made, an employer must obtain certification by the Dept of Labour’s regional offices.

 

  • To qualify to bring in employees on a corporate work visa, a company will need to show that 60% of it’s employees are South African.

 

  • Crucial skills visa, is the fourth permit available to skilled people – this is very similar to what is currently known as the exceptional skills permit – in this case an individual would not need an offer of employment to seek work in SA as long as their skills were on a list compiled by the home affairs minister. Their qualification would also need to be vetted by the South African Qualifications Authority.

 

  • The general work visa will be the most difficult of all the permits to obtain. The regulations also make exceptions for individuals coming into SA to fulfil short-term contracts in the fields of entertainment, journalism and film production.

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