In the past, prior to the amendments to the Immigration Act, it was possible for an illegal foreigner to “legalise” or “regularise” him/herself from within South Africa by making payment of the requisite fine. This is no longer the case and we are constantly encountering foreigners who find themselves illegally in South Africa with little hope of rectifying their situation.

The current dilemma

In many cases, these illegal foreigners elect to depart South Africa and contest any ban issued to them from outside of the country. This involves the submission of an overstay appeal to the Department of Home Affairs (“DHA”). A number of foreigners, however, simply have too much invested in South Africa and are unwilling to depart the country for fear of incurring a ban that may or may not be overturned

What your options are

Where an illegal foreigner wishes to “legalise” him/herself from within South Africa, he/she must meet certain criteria in order to do so. For the sake of clarity, “legalising” a foreigner entails applying to DHA for authorisation for the foreigner to remain in South Africa whilst submitting a visa application and awaiting the subsequent outcome. The “legalisation” does not provide the foreigner with the rights attributed to the holder of a specific visa until such visa has actually been issued to the foreigner.

How to get started

In order to qualify for “legalisation”, an illegal foreigner must satisfy DHA that: he/she was unable to submit a visa application timeously for reasons beyond his/her control and; that he/she is now in a position to do so. The latter requirement will be met by providing DHA with proof of a completed visa application containing all the requisite documents. The former requirement, however, is slightly more problematic.

The question of what the phrase “for reasons beyond his/her control” refers to is not clearly answered in the Immigration Act, but it is generally accepted that these reasons include medical grounds and errors on the part of DHA. For example, where an Applicant has applied for a visa timeously, but DHA have subsequently lost the

application and the foreigner’s visa has expired in the interim. All of this information will need to be provided to DHA in the form of written representations called an authorisation application. Such applications are commonly referred to as “good cause applications” by DHA officials.

Authorisation applications are assessed on a case-by-case basis and there is a degree of discretion applied by DHA in considering whether additional factors should be taken into consideration. A prominent factor taken into consideration will be whether the foreigner in question is married to a South Africa citizen or has South African children.

A Successful application

If such an application is successful, the foreigner will be provided with a Form 20 (also known as a letter of good cause) which authorises the foreigner to submit a visa application by a prescribed date. This authorisation lapses as soon as an outcome is received in the visa application. If the outcome is negative, the foreigner will need to depart South Africa immediately.

If you require assistance with submitting an authorisation application or would like additional information, kindly contact our offices.

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