Immigration Law Update: “Valid” Visas in Expired Passports

Source: Polity, 30/03/2017

On Wednesday 15 February 2017 we received an unsigned circular which
we believe was produced by the Department of Home Affairs (DHA), and
which Immigration Law Update: “Valid” Visas in Expired Passportsdealt
with the rectification of temporary residency visas and the transfer
of temporary residency visas from one passport to another. The
circular was badly drafted, and appeared to record that temporary
residency visas issued beyond the date of the expiry of a foreigner’s
passport will lapse when the passport expires, and that this DHA
policy would come into effect, immediately.


The DHA sought to justify the circular based upon an interpretation of
Immigration Regulation 2(3) and Section 48 of the Immigration Act 13
of 2002:


• “the period of validity of a passport contemplated in section
9(4)(a) of the Act shall not be less than 30 days after the
foreigner’s intended date of departure from the Republic”.


• no illegal foreigner shall be exempt from a provision of this Act or
be allowed to sojourn in the Republic on the grounds that he or she
was not informed that he or she could not enter or sojourn in the
Republic or that he or she was admitted or allowed to remain in the
Republic through error or misrepresentation, or because his or her
being an illegal foreigner was undiscovered”.


It seemed that the DHA’s stance was that their policy is in line with
the Act and its Regulation and therefore should not come as a shock.


The issuance of visas which extend past the expiry date of
a passport was never intended to be allowed in the first place. Any
issuance thereto was done in error, and should never have been
allowed.


On 21 February 2017 we were then advised by the DHA that the circular
should be “ignored”. It is apparently being “scrapped”, and a new
document would be issued “soon”. Until further notice we are “to
proceed on the basis that temporary residency visas issued with expiry
dates after passport expiry dates remain valid”.


What this information indicates is that temporary residency visa’s
going forward will most probably not be granted in excess of the
expiry date of a foreigner’s passport (this is in line with our
current legislation). Foreigners are to take this into account when
making travel plans to come to South Africa and/or remain here. It is
possible that the circular was issued to test the waters, in
particular the extent of the public outcry if the policy was to come
into effect immediately upon the issue of the directive.


Besides the moral and constitutional issues in doing so, if the DHA
proceeds with the new policy then practically speaking temporary
residency visas will only be eligible for insertion into new passports
once old passports have expired. To achieve this, applicants will need
to undergo another application process, but they can only do this once
their new passports have been issued. This will create havoc with
applicants who are relying on a continuous temporary residency visa
status to apply for permanent residency, and also with family members
who are dependent on these applicants to remain legally in the
country. My feeling is that the new policy is going to be difficult to
apply to expired passports. If the DHA insists on pushing forward, it
should avoid retracting existing temporary residency visas,
alternatively give these temporary residency visa holders a grace
period within which to sort out their temporary residency
visa/passport situations.


In the meanwhile, all remains as it did previously.