You have overstayed your Visa, now What!!!

Source: Sa Migration, 21/09/2017

You have overstayed your Visa, now What!!!

Overstaying ones visa is a common occurrence among expats in South
Africa and in recent months overstaying one visa has moved from being
a minor inconvenience to a possible criminal offence with potentially
serious ramifications. The changes brought about by the new
immigration laws have made overstaying ones visa a very serious affair
which needs a careful and smart approach to remedy. In this article we
will explore the effect of overstaying ones visa and what steps to
take to correct this now serious matter.
Effect of an overstay
An individual who remains the republic after his or her visa has
expired is in violations of the Act. The immigration Act describe such
individual as illegal Foreigners. Illegal foreigner are dealt with in
terms of section 32 which provides:
32(1) any illegal foreigner shall depart, unless authorised to do so
by the director general in the prescribed manner to remain in the
republic pending his or her application for a status
32(2) any illegal foreigner shall be deported.
The seriousness of an overstay is clear from the section, anyone who
is considered an illegal foreigner must be deported and there are no
exceptions. In addition section 49(1(a) makes it a criminal offence to
remain in the republic in contravention of the Act and on conviction
the penalty is imprisonment for a period of not more than 2 years or a
fine. In addition section 30(1) (h) renders one departing the republic
on an expired status an undesirable. So what recourse does one have
when they find themselves in this situation? The answer lies in the
same section 32(1), the authorisation issued by the Director General.
Legalization of an Overstay
Section 32(10 read with regulation 30 provides for a mechanism to cure
an overstay a potentially avoid any sanction for the overstay. This
process is commonly referred to as legalisation and is given
expression in the following section:
Reg30(1) reads â€" upon requesting authorisation as contemplated in
section 32(1) of the Act, an illegal foreigner who has neither been
arrested for the purpose of deportation nor been ordered to depart and
who wishes to apply for a status after the expiry of his or her visa,
shall-
(a)Demonstrate, in writing ,to the satisfaction of the Director
General that he or she was unable to apply for such status for reasons
beyond his or her control and;
(b)Submit proof to the Director General that he or she is in a
position to immediately submit his or her application for status.
Reg 30(2) The Authorization to remain in the Republic as contemplated
by section 32(1) of the Act shall be granted on Form 20….
In order to legalise an overstay 3 points must be complied with.
1.You must neither be arrested for purposes of deportation nor be
ordered to leave. Both instances occur when you have been detected by
Home affairs officials. Therefore you can only avail yourself to
legalisation if you have not been detected by immigration enforcement
officials.
2.Demonstrate in writing, commonly referred to a good cause. The
applicant must demonstrate that the overstay was not intentional but a
consequence of factors beyond the control of the applicant? It is not
enough to simply overstay for no justifiable reason and approach the
Director General where no good cause exists.
3.The applicant must show that he or she is in a position to submit
his or her application for a status immediately upon being granted the
authorisation.
Once the authorisation is given it will be issued to the applicant on
a form 20. The applicant then uses the form 20 to apply for the visa.
In practice however giving effect to this last part of the
legalization process is quite a challenge.
If you require assistance with Legalization and have any questions on
the topic please feel free to contact our offices for specialist advices.
www.sami.co.za