Light on ‘undesirable’ immigration law

Source: SA Migration, 09/04/2018

The Immigration Amendment Act No 13 of 2011 and the new regulations
under the act provide for what is termed the “undesirable person”.
Essentially, a foreign national who falls within a category listed in
section 30 (1) of the act can be declared an undesirable person by
the Department of Home Affairs.
The following are eight instances under which a foreign national can
be declared undesirable:
Any foreign national who:
l Is likely to become a public charge.
l Is declared as such by the minister of home affairs.
l Is found to be judicially incompetent.
l Is an unrehabilitated insolvent.
l Is ordered to depart from South Africa.
l Is a fugitive from justice.
l Has previous criminal convictions without the option of a fine for
conduct that would be an offence within the republic.
l Has overstayed on a permit issued by the department (section 30(1)
(h).
This article focuses on section 30(1)(h), since it is a new category
that has effectively removed the imposition of fines upon foreign
nationals who remain in South Africa on expired permits.
The period of the declaration is determined by examining the period
overstayed. Foreign nationals who overstay in South Africa for a
period not exceeding 30 days will be declared as undesirable for a
year. Foreign nationals who overstay by more than 30 days will be
declared undesirable for five years.
The department has also introduced Directive 9 of 2014, which
confirms regulation 27 (3) and stipulates that people who overstay on
their permits will be declared as undesirable.
In Johnson and Others versus minister of Home Affairs and Others, Re:
Delorie and Others versus Minister of Home Affairs and Another
(10310/2014, 10452/2014) [2014] ZAWCHC 101 (30 June 2014) (Johnson
case), the Western Cape High Court considered the impact of section
30 (1) (h), regulation 27 (3) and the directive on two families
separated due to declarations of undesirability.
The court elected to consolidate the Johnson and Delorie applications
since they both sought to urgently remove the “undesirable” status of
two foreign nationals who had left SA on expired permits.
The Johnson case concerned Louise Henrikson Egedal-Johnson a Danish
national who, since 2009, has been married to Brent Johnson, a South
African. The couple had one child. Since her marriage to Johnson,
Egedal-Johnson remained in South Africa on a relative’s permit, which
was issued by Home Affairs on February 28, 2012. The permit expired
on February 27 this year. On February 10, Egedal-Johnson applied for
extension.
By May 28, her application had not been adjudicated. On May 28,
Egedal-Johnson and her family left South Africa. When departing, the
immigration officials at Cape Town International Airport issued
Egedal-Johnson with a form declaring her as an undesirable person
since she had overstayed in South Africa for about 90 days.
When Egedal-Johnson attempted to re-enter the country, she was
refused entry by immigration officials and was subsequently deported
to Denmark with her child.
The Delorie application concerned David Ross Henderson, a Zimbabwean
national who was married to Cherene Theresa Delorie, a South African
permanent resident. The couple had two children. Henderson remained
in South Africa on a valid work permit, which expired on April 21
this year. When he left on a business trip to Nigeria, immigration
officials at Cape Town International Airport declared him an
undesirable person. Henderson was unable to return.
It is within the context of these facts that Egedal-Johnson and
Delorie, on behalf of their families, applied for urgent relief from
the Western Cape High Court.
Judge James Yekiso made the following key findings: Shortly before
Egedal-Johnson and Henderson had departed the country on May 28, the
immigration laws relating to undesirable people had fundamentally
changed and the introduction of section 30 (1) (h) meant that
foreigners who overstayed on expired permits could be declared as
undesirable.
Their statuses meant that Egedal-Johnson, Henderson and their
respective families were suffering prejudice. It was held that their
statuses be suspended, thus they were permitted to enter and remain
in the country.
Subsequent to the enactment of the law and regulations, Home Affairs
introduced an appeal process for people who were declared as
undesirable due to expired permits.
The formal appeal must include:
l Written representations stipulating reasons why the declaration
should be removed.
l A copy of the declaration of undesirability.
l Copies of the foreigner’s passport.
l A copy of the acknowledgement of receipt if the foreigner has
applied for an extension of a visa.
Home Affairs indicated that appeals will be adjudicated within about
48 hours, but there is no guarantee. Employers are urged to inform
their foreign staff of the act.
Foreign nationals who seek the extension of existing visas must
ensure that such applications are made at least 60 days before their
existing visas expire. A failure to do so may result in such foreign
nationals being declared undesirable.