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Labour Legislation Index

Immigration Act 13 of 2002

IMMIGRATION ACT 13 OF 2002

(26 May 2014 – to date)

[This is the current version and applies as from 26 May 2014, i.e. the date of commencement of the Immigration Amendment Act 3 of 2007 and the Immigration Amendment Act 13 of 2011 – to date]. Includes Immigration Amendment Act, 2016 No. 8 of 2016

(Gazette No. 23478, Notice No. 766, dated 31 May 2002. Commencement date: 12 March 2003, unless otherwise indicated. [Proc. No. R13, Gazette No. 24951, dated 20 February 2003])

 

As amended by:

  • Prevention and Combating of Corrupt Activities Act 12 of 2004 – Government Gazette 26311, Notice No. 559, dated 28 April 2004. Commencement date: 27 April 2004. 
  • Immigration Amendment Act 19 of 2004 – Government Gazette 26901, Notice No. 1206, dated 18 October 2004. Commencement date: 1 July 2005. [Proc. No. R30, Gazette No. 27725, dated 27 June 2005]. 
  • Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 – Government Gazette 30599, Notice No. 1224, dated 14 December 2007. Commencement date: 16 December 2007. 
  • Immigration Amendment Act 3 of 2007 – Government Notice 656 in Government Gazette 30095 dated 18 July 2007. Commencement date: 26 May 2014 and the Immigration Amendment Act 13 of 2011 – Government Notice 690 in Government Gazette 34561 dated 26 August 2011.
  • Commencement date: 26 May 2014 [Proc. Nos. R32 and R33, Gazette No. 37679]
  • Immigration Amendment Act, 2016 No. 8 of 2016

 

_____________________

 

Amendment of section 32 of Act 13 of 2002, as amended by section 33 of Act 19 of 2004

To amend the Immigration Act, 2002, so as to provide for an adequate sanction for foreigners who have overstayed in the Republic beyond the expiry date on their visa; and to provide for matters connected therewith.

 

1. Section 32 of the Immigration Act, 2002 (Act No. 13 of 2002) (hereinafter referred to as ‘‘the principal Act’’), is hereby amended by the insertion after subsection (1) of the following subsections:

‘‘(1A) Foreigners who are illegal by virtue of having overstayed, as prescribed, do not qualify for a port of entry visa, a visa, admission into the Republic or a permanent residence permit during the prescribed period.

(1B) Upon application, as prescribed, from outside the Republic by the illegal foreigner contemplated in subsection (1A), the Director-General may waive the disqualification contemplated in subsection (1A) where exceptional circumstances, as prescribed, exist.’’.

 

Amendment of section 50 of Act 13 of 2002, as amended by sections 46 and 47 of Act 19 of 2004 and section 25 of Act 13 of 2011

2. Section 50 of the principal Act is hereby amended by the substitution for subsection

(1) of the following subsection:

‘‘(1) Any foreigner who leaves the Republic after the expiry of his or her visa shall be dealt with in terms of section [30(1)(h)] 32(1A).’’.

Short title and commencement

3. This Act is called the Immigration Amendment Act, 2016, and comes into operation on a date determined by the President by proclamation in the Gazette.

 

The Act has been amended by section 26 of Act 13 of 2011 which states the following:

“26.   Substitution of words

The principal Act is hereby amended-

(a)      by the substitution for the word "permit" or "permits", wherever it occurs in the Act, of the word "visa" or "visas", as the case may be, except in cases where-

(i)       reference is made to a permanent residence permit; and

(ii)      there is an amendment effected by any of the sections of this Act, excluding this section;

(b)      by the substitution for the words "temporary residence permit" or "temporary residence permits", wherever they occur in the Act, of the word "visa" or "visas", as the case may be;

(c)      by the substitution for the word "condition" or "conditions", wherever it occurs in the Act, of the words "terms and conditions", except in cases where the phrase '"terms and conditions" or "terms or conditions"' are used; and

(d)      by the substitution for the words "21 years", wherever they occur in the Act, of the words "18 years".”

 

It is hereby notified that the President has assented to the following Act, which is hereby published for general information: -

 

GENERAL EXPLANATORY NOTE:

 

[              ]        Words in bold type in square brackets indicate omissions from existing enactments.

 

__________       Words underlined with a solid line indicate insertions in existing enactments.

 

_______________________________

(English text signed by the President.)

(Assented to 30 May 2002.)

_______________________________

 

ACT

 

To provide for the regulation of admission of persons to, their residence in, and their departure from the Republic; and for matters connected therewith.

 

PREAMBLE

 

In providing for the regulation of admission of foreigners to, their residence in, and their departure from the Republic and for matters connected therewith, the Immigration Act aims at setting in place a new system of immigration control which ensures that-

(a)      visas and permanent residence permits are issued as expeditiously as possible and on the basis of simplified procedures and objective, predictable and reasonable requirements and criteria, and without consuming excessive administrative capacity;

(Paragraph (a) of the Preamble substituted by section 1 of Act 13/2011)

(b)      security considerations are fully satisfied and the State retains control over the immigration of foreigners to the Republic;

(c)      interdepartmental coordination and public consultations enrich the management of immigration;

(Paragraph (c) of the Preamble substituted by section 1 of Act 13/2011)

(d)      economic growth is promoted through the employment of needed foreign labour, foreign investment is facilitated, the entry of exceptionally skilled or qualified people is enabled, skilled human resources are increased, academic exchanges within the Southern African Development Community is facilitated and tourism is promoted;

(e)      the role of the Republic in the continent and the region is recognised;

(f)      the entry and departure of all persons at ports of entry are efficiently facilitated, administered and managed;

(g)      immigration laws are efficiently and effectively enforced, deploying to this end significant administrative capacity of the Department of Home Affairs, thereby reducing the pull factors of illegal immigration;

(h)      the South African economy may have access at all times to the full measure of needed contributions by foreigners;

(i)       the contribution of foreigners in the South African labour market does not adversely impact on existing labour standards and the rights and expectations of South African workers;

(j)       a policy connection is maintained between foreigners working in South Africa and the training of our citizens;

(k)      push factors of illegal immigration may be addressed in cooperation with other Departments and the foreign states concerned;

(l)       immigration control is performed within the highest applicable standards of human rights protection;

(m)     xenophobia is prevented and countered;

(n)      a human rights based culture of enforcement is promoted;

(o)      the international obligations of the Republic are complied with; and

(p)      civil society is educated on the rights of foreigners and refugees.

(Preamble substituted by section 1 of Act 19 of 2004)

 

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: -

 

TABLE OF CONTENTS

1.       Definitions

OBJECTIVES AND STRUCTURES OF IMMIGRATION CONTROL

2.       ……….

3.       Delegation of powers

4.       Immigration Advisory Board

5.       Functions of Board

6.       ……….

7.       Regulations

8.       Review and appeal procedures

ADMISSION AND DEPARTURE

9.       Admission and departure

9A.     Place of entry or exit

TEMPORARY RESIDENCE

10.     Visas to temporarily sojourn in Republic

10A.   Port of entry visa

10B.   Transit visas

11.     Visitor's visa

12.     ……….

13.     Study visa

14.     Treaty visa

15.     Business visa

16.     Crew visa

17.     Medical treatment visa

18.     Relative's visa

19.     Work visas

20.     Retired person visa

21.     Corporate visa

22.     Exchange visa

23.     Asylum transit visa

24.     …..

PERMANENT RESIDENCE

25.     Permanent residence

26.     Direct residence

27.     Residence on other grounds

28.     Withdrawal of permanent residence permit

EXCLUSIONS AND EXEMPTIONS

29.     Prohibited persons

30.     Undesirable persons

31.     Exemptions

ENFORCEMENT AND MONITORING

32.     Illegal foreigners

33.     Inspectorate

34.     Deportation and detention of illegal foreigners

35.     Duties with regard to conveyances

36.     ……….

IMMIGRATION COURTS

37.     ……….

DUTIES AND OBLIGATIONS

38.     Employment

39.     Learning institutions

40.     Keeping of registers of lodgers by certain persons

41.     Identification

42.     Aiding and abetting illegal foreigners

43.     Obligation of foreigners

44.     Organs of state

45.     Other institutions

MISCELLANEOUS

46.     ……….

47.     ……….

48.     Foreigners erroneously allowed to enter Republic

OFFENCES

49.     Offences

50.     Administrative offences

TRANSITIONAL PROVISIONS

51.     Transitional definitions

52.     Functions of Department and Board

53.     Existing visas

54.     Repeal of laws

55.     Short title and commencement

Schedule 1

Schedule 2

Schedule 3

 

1.       Definitions and interpretation

(1)      In this Act, unless the context otherwise indicates-

“admission” means entering the Republic at a port of entry in terms of section 9;

“advance passenger processing” means the pre-clearance of persons, in the prescribed manner, prior to boarding conveyances by means of a boarding advice issued to owners or persons in charge of conveyances;

(Definition of “advance passenger processing” inserted by section 2(a) of Act 13 of 2011)

“affiliate” means an associate member of a company or organisation;

(Definition of “affiliate” inserted by section 1(a) of Act 3 of 2007)

“Board” means the Immigration Advisory Board established by section 4;

“border” means the national borders of the Republic;

“branch” means a branch as contemplated in section 21A of the Companies Act, 1973 (Act No. 61 of 1973);

(Definition of “branch” inserted by section 1(b) of Act 3 of 2007)

“citizen” has the meaning assigned thereto in the South African: Citizenship Act, 1995 (Act No. 88 of 1995);

“conveyance” means any ship, boat, aircraft or vehicle, or any other means of transport;

“corporate applicant” means a juristic person established under the laws of the Republic which applies for a corporate visa referred to in section 21;

(Definition of “corporate applicant” substituted by section 2(b) of Act 13 of 2011)

“court” means a magistrate’s court;

“customary union” …

(Definition of “customary union” deleted by section 2(c) of Act 13 of 2011)

“Department” means the Department of Home Affairs;

“depart or departure” means exiting the Republic from a port of entry to another country in compliance with this Act;

(Definition of “depart or departure” substituted by section 1(c) of Act 3 of 2007)

“deport or deportation” means the action or procedure aimed at causing an illegal foreigner to leave the Republic in terms of this Act;

“Director-General” means the Director-General of the Department;

“employer” includes a person contractually bound by the applicable employment contract as an employer or, in the case of a juristic person, its chief executive officer or the person to whom such officer has delegated the final responsibility in respect of personnel matters;

“foreign country” means a country other than the Republic;

“foreign state” means the juristic entity governing a foreign country;

“foreigner” means an individual who is not a citizen;

“illegal foreigner” means a foreigner who is in the Republic in contravention of this Act;

“immediate family” means persons within the second step of kinship, where marriage or a spousal relationship is counted as one of such steps, but any common antecedent is not so counted;

“immigration officer” means an officer appointed by the Director-General to perform the functions of either the permitting office, port of entry or inspectorate as contemplated in this Act;

(Definition of “immigration officer” substituted by section 2(d) of Act 13 of 2011)

“marriage” means  -

(a)      a marriage concluded in terms of-

(i)       the Marriage Act, 1961 (Act No. 25 of 1961); or

(ii)      the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998);

(b)      a civil union concluded in terms of the Civil Union Act, 2006 (Act No. 17 of 2006); or

(c)      a marriage concluded in terms of the laws of a foreign country;

(Definition of “marriage” substituted by section 2(e) of Act 13 of 2011)

“Minister” means the Minister of Home Affairs;

“organ of state” means an organ of state as defined in section 239 of the Constitution;

“owner” means the owner of record and includes the charterer of a conveyance and any agent within the Republic of the owner or the charterer;

“passenger name record” means the record of the data of a person as contemplated in section 35(3)(a) created by the owner or person in charge of a conveyance or his or her authorised agents for each journey booked by or on behalf of any person;

(Definition of “passenger name record” inserted by section 2(f) of Act 13 of 2011)

“passport” means any passport or travel document containing the prescribed information and characteristics issued-

(a)      under the South African Passports and Travel Documents Act. 1994 (Act No. 4 of 1994):

(b)      on behalf of a foreign state recognised by the Government of the Republic to a person who is not a South African citizen;

(c)   on behalf of any international organisation as prescribed, including regional or sub-regional organisations, to a person who is not a South African citizen; or

any other document approved by the Minister and issued under special circumstances to a person who cannot obtain a document contemplated in paragraphs (a) to (c);

(Definition of “passport” substituted by section 2(g) of Act 13 of 2011)

“permanent residence permit” means a permit contemplated in section 25, 26 or 27;

“port of entry” means a place designated as such by the Minister in terms of section 9A;

(Definition of “port of entry” substituted by section 2(h) of Act 13 of 2011)

“port of entry visa” means the authority to travel from a port of entry of another country to any port of entry of the Republic for the purposes of admission into the Republic, as contemplated in section 10A;

(Definition of “port of entry visa” inserted by section 2(i) of Act 13 of 2011)

“premises” means any building, structure or tent, together with the land on which it is situated and the adjoining land used in connection with it, and includes any land without any building, structure or tent and any conveyance;

“prescribed” means prescribed by regulation;

“prohibited person” means any person contemplated in section 29;

“Republic” …

(Definition of “Republic” deleted by section 2(j) of Act 13 of 2011)

“spouse” means a person who is a party to -

(a)      a marriage as defined in this Act; or

(Paragraph (a) of the definition of “spouse” substituted by section 2(k) of Act 13 of 2011)

(b)      a permanent homosexual or heterosexual relationship as prescribed;

“status” means the status of the person as determined by the relevant visa or permanent residence permit granted to a person in terms of this Act;

(Definition of “status” substituted by section 2(l) of Act 13 of 2011)

“subsidiary” means a subsidiary as defined in section 1(1) of the Companies Act, 1973 (Act No. 61 of 1973);

(Definition of “subsidiary” inserted by section 1(d) of Act 3 of 2007)

“temporary residence permit” …

(Definition of “temporary residence permit” deleted by section 2(m) of Act 13 of 2011)

“this Act” means this Act, including its schedules, and includes the regulations made pursuant thereto;

“transit visa” means a transit visa contemplated in section 10B;

“undesirable person” means a person contemplated in section 30;

“visa” means the authority to temporarily sojourn in the Republic for purposes of-

(a)      transit through the Republic as contemplated in section 10B;

(b)      a visit as contemplated in section 11;

(c)      study as contemplated in section 13;

(d)      conducting activities in the Republic in terms of an international agreement to which the Republic is a party as contemplated in section 14;

(e)      establishing or investing in a business as contemplated in section 15;

(f)      working as a crew member of a conveyance in the Republic as contemplated in section 16;

(g)      obtaining medical treatment as contemplated in section 17;

(h)      staying with a relative as contemplated in section 18;

(i)       working as contemplated in section 19 or 21;

(j)       retirement as contemplated in section 20;

(k)      an exchange programme as contemplated in section 22; or

(l)       applying for asylum as contemplated in section 23, whichever is applicable in the circumstances;

(Definition of “visa” substituted by section 2(n) of Act 13 of 2011)

“work” includes-

(a)      conducting any activity normally associated with the running of a specific business; or

(b)      being employed or conducting activities consistent with being employed or consistent with the profession of the person, with or without remuneration or reward, within the Republic.

(Section 1(1) substituted by section 2(a) of Act 19 of 2004)

(2)      ……….

(Section 1(2) deleted by section 2(b) of Act 19 of 2004)

 

OBJECTIVES AND STRUCTURES OF IMMIGRATION CONTROL

2.       ……….

(Section 2 repealed by section 3 of Act 19 of 2004)

 

3.       Delegation of powers

(1)      The Minister may, subject to the terms and conditions that he or she may deem necessary, delegate any power conferred on him or her by this Act, excluding a power referred to in sections 3, 4, 5 and 7, to an officer or category of officers or an employee or category of employees or a person or category of persons in the Public Service, but shall not be divested of any power so delegated.

(2)      The Director-General may, subject to the terms and conditions that he or she may deem necessary, delegate any power conferred on him or her by this Act to an officer or category of officers or an employee or category of employees or a person or category of persons in the Public Service, but shall not be divested of any power so delegated.

(Section 3 substituted by section 4 of Act 19 of 2004)

 

4.       Immigration Advisory Board

 

(1)      The Immigration Advisory Board is hereby established.

(2)     

(a)      The Board shall consist of-

(i)       (aa)              the Director-General;

(bb)   the Head of the Immigration Services Branch of the Department;

(ii)      any representative, at least equivalent to the rank of Deputy Director-General, from any department or organ of state whom the Minister considers relevant;

(iii)     a person representing organised business;

(iv)     a person representing organised labour; and

(v)      up to five individual persons appointed by the Minister in the prescribed manner on the basis of their knowledge, experience and involvement pertaining to immigration law, control, adjudication or enforcement.

(b)      The Minister shall designate from the members of the Board a Chairperson and Deputy Chairperson of the Board.

(Section 4(2) substituted by section 5(a) of Act 19 of 2004)

(Section 4(2) substituted by section 3(a) of Act 13 of 2011)

(3)      …………

(Section 4(3) deleted by section 5(b) of Act 19 of 2004)

(4)      A member of the Board referred to in subsection (2)(a)(iii), (iv) and (v) shall-

(Words preceding paragraph (a) substituted by section 5(c) of Act 19 of 2004)

(Words preceding paragraph (a) substituted by section 3(b) of Act 13 of 2011)

(a)      serve for a four-year-term, at the expiry of which they shall be eligible for one or more re-appointments, provided that the Minister may elect to fill any vacancy which may occur by appointing a person for the unexpired portion of the term of the member in whose place such person is appointed;

(b)      at no time -

(i)       be or become an unrehabilitated insolvent;

(ii)      be or have been judicially declared of unsound mind;

(iii)     suffer an infirmity of mind or body preventing him or her from the proper discharge of the duties of his or her office;

(iv)     be convicted by final conviction or sentence of an offence without the option of a fine;

(v)      be or become a political office bearer; or

(vi)     be or have been removed from an office of trust on account of misconduct involving theft or fraud;

(c)      cease to be a member -

(i)       on resignation;

(ii)      if requested by the Minister to resign for good cause;

(iii)     if he or she fails to attend two consecutive meetings of the Board, unless his or her apology has been accepted by the Board; or

(iv)     if he or she becomes disqualified in terms of this Act; and

(d)      be paid such remuneration and be entitled to such benefits and allowances as determined from time to time by the Minister after consultation with the Director-General and with the approval of the Minister of Finance.

(5)      The administrative work connected with the performance of the functions of the Board shall be performed by officers of the Department, designated by the Director-General for that purpose.

(Section 4(5) substituted by section 5(d) of Act 19 of 2004)

(6)      ……….

(Section 4(6) deleted by section 5(e) of Act 19 of 2004)

(7)      The Minister may dissolve the Board on such terms and conditions as he or she sees fit, provided that a new Board shall be convened within 90 calendar days.

(8)      ……….

(Section 4(8) deleted by section 5(f) of Act 19 of 2004)

(9)      Subject to this Act, the Board shall operate and meet as prescribed.

(Commencement date of section 4: 26 February 2003)

 

5.       Functions of Board

The Board shall -

(a)      advise the Minister in respect of-

(i)       the contents of regulations that may be made in terms of this Act;

(ii)      the formulation of policy pertaining to immigration matters; and

(iii)     any other matter relating to this Act on which the Minister may request advice; and

(b)      serve as the interdepartmental cooperation forum for all immigration matters."

(Section 5 substituted by section 6 of Act 19 of 2004)

 

6.       ……….

(Section 6 repealed by section 7 of Act 19 of 2004)

 

7.       Regulations

(1)      The Minister may, after consultation with the Board, make regulations relating to-

(a)      the powers and duties of immigration officers;

(b)      the steps to be taken to prevent the entry of illegal foreigners into the Republic and to facilitate the tracing and identification of illegal foreigners in, and their removal from, the Republic;

(c)      the procedure regulating the entry into and departure from the Republic of persons at a port of entry, and the requirements and terms and conditions to be complied with at such a port;

(d)      the times and places of, and the manner of conducting, an enquiry relating to, or the examination of, persons entering or desiring to enter the Republic or who, having been found in the Republic, are suspected of being prohibited persons or unlawfully resident therein;

(e)      a port of entry visa, visas, permanent residence permits and the certificates which may be issued under this Act, the requirements for the issuing of a port of entry visa, visas, permanent residence permits and certificates and terms and conditions to which such port of entry visa, visas, permanent residence permits or certificates may be subjected, and the circumstances under which such a port of entry visa, visas, permanent residence permits or certificates may be cancelled or withdrawn;

(Section 7(1)(e) substituted by section 4(a) of Act 13 of 2011)

(f)      the terms and conditions upon which prohibited persons may be allowed to pass through the Republic while journeying or being conveyed to a place outside the Republic;

(g)      the forms of warrants, permanent residence permits, a port of entry visa, visas, certificates or other documents to be issued or used, or of declarations to be made, or of registers to be kept, for the purposes of this Act, and the particulars to be provided on or inserted in any such document, declaration or register;

(Section 7(1)(g) substituted by section 4(b) of Act 13 of 2011)

(h)      the fees that may be charged in respect of overtime services required to be performed by immigration officers;

(i)       the fees that may be charged in respect of the application for and issuing of a port of entry visa, visas, permanent residence permits and certificates and other services rendered in terms of this Act, including advance passenger processing and passenger name record information transmission;

(Section 7(1)(i) substituted by section 4(c) of Act 13 of 2011)

(j)       the steps to be taken to prevent the departure from the Republic of a person not in possession of a passport or other appropriate documentation;

(k)      …

(Section 7(1)(k) deleted by section 4(d) of Act 13 of 2011)

(l)       the manner in which payment of a deposit contemplated in section 34(3) may be enforced;

(m)     the steps to be taken to ensure proper exploitation of the local labour market before a work visa is issued in terms of section 19;

(n)      the circumstances whereunder and the manner in which a penalty shall be incurred by and recovered from the owner, agent, charterer or person in charge of a conveyance and who conveyed a foreigner contemplated in section 35(9) to the Republic;

(Section 7(1)(n) substituted by section 4(e) of Act 13 of 2011)

(o)      any matter that may be prescribed under this Act; and

(p)      generally, any matter required for the better achievement of the objects and purposes of this Act.

(2)      Different regulations may be made under subsection (1)(c) in respect of different ports of entry, and the forms of warrants, permanent residence permits, a port of entry visa, visas, certificates, documents, declarations or registers prescribed under subsection (1)(g) may differ in respect of different categories of persons.

(Section 7(2) substituted by section 4(f) of Act 13 of 2011)

(3)      A regulation made under subsection (1) may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine, or to imprisonment for a period not exceeding 12 months.

(4)      The Minister may-

(a)      exempt a person or category of persons from paying fees prescribed under subsection (1)(h); and

(b)      withdraw an exemption granted to a person or a category of persons under paragraph (a).

(5)      Any fee which may be prescribed under subsection (1) shall be prescribed by the Minister with the concurrence of the Minister of Finance.

(Commencement date of section 7: 20 February 2003)

(Section 7 substituted by section 8 of Act 19 of 2004)

 

8.       Review and appeal procedures

(1)      An immigration officer who refuses entry to any person or finds any person to be an illegal foreigner shall inform that person on the prescribed form that he or she may in writing request the Minister to review that decision and-

(a)      if he or she arrived by means of a conveyance which is on the point of departing and is not to call at any other port of entry in the Republic, that request shall without delay be submitted to the Minister; or

(b)      in any other case than the one provided for in paragraph (a), that request shall be submitted to the Minister within three days after that decision.

(2)      A person who was refused entry or was found to be an illegal foreigner and who has requested a review of such a decision-

(a)      in a case contemplated in subsection (1)(a), and who has not received an answer to his or her request by the time the relevant conveyance departs, shall depart on that conveyance and shall await the outcome of the review outside the Republic; or

(b)      in a case contemplated in subsection (1)(b), shall not be removed from the Republic before the Minister has confirmed the relevant decision.

(3)      Any decision in terms of this Act, other than a decision contemplated in subsection (1), that materially and adversely affects the rights of any person, shall be communicated to that person in the prescribed manner and shall be accompanied by the reasons for that decision.

(4)      An applicant aggrieved by a decision contemplated in subsection (3) may, within 10 working days from receipt of the notification contemplated in subsection (3), make an application in the prescribed manner to the Director-General for the review or appeal of that decision.

(5)      The Director-General shall consider the application contemplated in subsection (4), whereafter he or she shall either confirm, reverse or modify that decision.

(6)      An applicant aggrieved by a decision of the Director-General contemplated in subsection (5) may, within 10 working days of receipt of that decision, make an application in the prescribed manner to the Minister for the review or appeal of that decision.

(7)      The Minister shall consider the application contemplated in subsection (6), whereafter he or she shall either confirm, reverse or modify that decision.

(Section 8 substituted by section 9 of Act 19 of 2004)

 

ADMISSION AND DEPARTURE

9.       Admission and departure

(1)      Subject to this Act, no person shall enter or depart from the Republic at a place other than a port of entry.

(2)      Subject to this Act, a citizen shall be admitted, provided that he or she identifies himself or herself as such and the immigration officer records his or her entrance.

(3)      No person shall enter or depart from the Republic-

(a)      unless he or she is in possession of a valid passport, and in the case of a minor, has his or her own valid passport;

(b)      except at a port of entry, unless exempted in the prescribed manner by the Minister, which exemption may be withdrawn by the Minister;

(c)      unless the entry or departure is recorded by an immigration officer in the prescribed manner; and

(d)      unless his or her relevant admission documents have been examined in the prescribed manner and he or she has been interviewed in the prescribed manner by an immigration officer: Provided that, in the case of a child, such examination and interview shall be conducted in the presence of the parent or relative or, if the minor is not accompanied by the parent or relative, any person of the same gender as the minor.

(Section 9(3) substituted by section 5(a) of Act 13 of 2011)

(4)      A foreigner who is not the holder of a permanent residence permit contemplated in section 25 may only enter the Republic as contemplated in this section if-

(a)      his or her passport is valid for a prescribed period; and

(b)      issued with a valid visa, as set out in this Act.

 (Section 9(4) substituted by section 5(b) of Act 13 of 2011)

(Section 9 substituted by section 10 of Act 19 of 2004)

9A.     Place of entry or exit

(1)      The Minister may, in the prescribed manner, designate any place in the Republic, which complies with the prescribed requirements, where all persons have to report before they may enter, sojourn or remain within, or depart from, the Republic.

(2)      The Minister may, on good cause shown, withdraw the designation contemplated in subsection (1) at any time.

(Section 9A inserted by section 6 of Act 13 of 2011)

 

TEMPORARY RESIDENCE

10.     Visas to temporarily sojourn in Republic

(Heading of section 10 substituted by section 7(a) of Act 13 of 2011)

(1)      Upon admission, a foreigner, who is not a holder of a permanent residence permit, may enter and sojourn in the Republic only if in possession of a visa issued by the Director-General for a prescribed period.

(Section 10(1) substituted by section 7(b) of Act 13 of 2011)

(2)      Subject to this Act, upon application in person and in the prescribed manner, a foreigner may be issued one of the following visas for purposes of-

(a)      transit through the Republic as contemplated in section 10B;

(b)      a visit as contemplated in section 11;

(c)      study as contemplated in section 13;

(d)      conducting activities in the Republic in terms of an international agreement to which the Republic is a party as contemplated in section 14;

(e)      establishing or investing in a business as contemplated in section 15;

(f)      working as a crew member of a conveyance in the Republic as contemplated in section 16;

(g)      obtaining medical treatment as contemplated in section 17;

(h)      staying with a relative as contemplated in section 18;

(i)       working as contemplated in section 19 or 21;

(j)       retirement as contemplated in section 20;

(k)      an exchange programme as contemplated in section 22; or

(l)       applying for asylum as contemplated in section 23.

(Section 10(2) substituted by section 2 of Act 3 of 2007)

(Section 10(2) substituted by section 7(c) of Act 13 of 2011)

(3)      If issued outside the Republic, a visa is deemed to be of force and effect only after an admission.

(4)      A visa is to be issued on condition that the holder is not or does not become a prohibited or an undesirable person.

(5)      The Director-General may for good cause attach reasonable individual terms and conditions as may be prescribed to a visa.

(6)     

(a)      Subject to this Act, a foreigner, other than the holder of a visitor's or medical treatment visa, may apply to the Director-General in the prescribed manner to change his or her status or terms and conditions attached to his or her visa, or both such status and terms and conditions, as the case may be, while in the Republic.

(b)      An application for a change of status attached to a visitor's or medical treatment visa shall not be made by the visa holder while in the Republic, except in exceptional circumstances as prescribed.

(Section 10(6) substituted by section 7(d) of Act 13 of 2011)

(7)      Subject to this Act, the Director-General may, on application in the prescribed manner and on the prescribed form, extend the period for which a visa contemplated in subsection (2) was issued.

(8)      An application for a change in status does not provide a status and does not entitle the applicant to any benefit under the Act, except for those explicitly set out in the Act, or to sojourn in the Republic pending the decision in respect of that application.

(9)      The Director-General may at any time in writing notify the holder of a visa issued in terms of this section that, subject to subsection (10), the visa shall be cancelled for the reasons disclosed in the notice and that the holder is thereby ordered to leave the Republic within a period stated in that notice, and upon the expiration of that period the visa shall become null and void.

(10)    The holder of a visa who receives a notice contemplated in subsection (9) may, before the expiration of the period stated in that notice, make representations to the Director-General which he or she shall consider before making his or her decision.

(Section 10 substituted by section 11 of Act 19 of 2004)

 

10A.   Port of entry visa

(Heading of section 10A substituted by section 8(a) of Act 13 of 2011)

(1)      Any foreigner who enters the Republic shall, subject to subsections (2) and (4), on demand produce a valid port of entry visa, granted under subsection (3), to an immigration officer.

(Section 10A(1) substituted by section 8(b) of Act 13 of 2011)

(2)      Any person who holds -

(a)      a valid visa for purposes of-

(i)       study as contemplated in section 13;

(ii)      conducting activities in the Republic in terms of an international agreement to which the Republic is a party as contemplated in section 14;

(iii)     establishing or investing in a business as contemplated in section 15;

(iv)     working as a crew member of a conveyance in the Republic as contemplated in section 16;

(v)      obtaining medical treatment as contemplated in section 17;

(vi)     staying with a relative as contemplated in section 18;

(vii)   working as contemplated in section 19 or 21;

(viii)           retirement as contemplated in section 20;

(ix)     an exchange programme as contemplated in section 22; or

(x)      applying for asylum as contemplated in section 23: or

(b)      a permanent residence permit issued in terms of sections 25 to 27, shall, upon his or her entry into the Republic and after having been issued with that visa or permanent residence permit, be deemed to be in possession of a valid port of entry visa for the purposes of this section.

(Section 10A(2) substituted by section 8(b) of Act 13 of 2011)

(3)      A port of entry visa referred to in subsection (1)-

(Words preceding section 10A(3)(a) substituted by section 8(c) of Act 13 of 2011)

(a)      may, subject to any terms and conditions that the Minister may deem fit, be granted by the Minister to any person who is not exempt, as contemplated in subsection (4), from the requirement of having to be in possession of a valid port of entry visa, and who has applied for such a port of entry visa in the prescribed manner;

(Section 10A(3)(a) substituted by section 8(d) of Act 13 of 2011)

(b)      shall contain a statement to the effect that authority to proceed to the Republic to report to an immigration officer at a port of entry has been granted by the Minister to the holder of a passport, and such statement shall be endorsed in the passport concerned; and

(c)      may for good cause be withdrawn and declared null and void by the Minister.

(4)      The Minister may-

(a)      exempt any person or category of persons from subsection (1) with regard to the requirement of having to be in possession of a valid port of entry visa in order to obtain a visitor's visa contemplated in section 11, for a specified or unspecified period and either unconditionally or subject to the terms and conditions that the Minister may impose;

(Section 10A(4)(a) substituted by section 8(e) of Act 13 of 2011)

(b)      exclude any person belonging to a category of persons contemplated in paragraph (a) from any exemption granted to that category; and

(c)      withdraw any exemption granted in terms of paragraph (a) to any category of persons or to any person, and, in the case of a person, the Minister may do so irrespective of whether that person was exempted as an individual or as a member of a category of persons.

(5)      Any person who contravenes subsection (1) shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 12 months, and an immigration officer may-

(a)      whether or not that person has been convicted of that offence, if that person is not in custody, arrest him or her or cause him or her to be arrested without a warrant;

(b)      remove that person or cause him or her to be removed from the Republic under a warrant issued by the Minister; and

(c)      pending the removal of that person, detain him or her or cause him or her to be detained in the manner and at a place determined by the Director-General.

(6)      If a person has been convicted and sentenced under subsection (5), that person may before the expiration of that sentence be removed from the Republic in the manner contemplated in the said subsection.

(Section 10A inserted by section 12 of Act 19 of 2004)

 

10B.   Transit visas

(1)      Subject to subsection (4)(a), no person, other than a citizen or permanent resident, who is proceeding from a place outside the Republic to a destination outside the Republic, shall travel through the Republic, unless he or she is in possession of a transit visa issued for that purpose in terms of subsection (2).

(Section 10B(1) substituted by section 3 of Act 3 of 2007)

(2)      The Minister may, on the terms and conditions that he or she may impose, authorise the issue of a transit visa to any person.

(3)      Any person who contravenes subsection (1) or who, while travelling through the Republic as contemplated in subsection (1), fails on demand by an immigration officer to produce a transit visa issued to him or her under subsection (2), or any holder of any such transit visa who contravenes any condition of that visa-

(a)      shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years; and

(b)      may be dealt with as an illegal foreigner, whether or not that person has been convicted or sentenced as contemplated in paragraph (a).

(4)      The Minister may-

(a)      exempt any person or category of persons from this section;

(b)      exclude any person belonging to a category of persons contemplated in paragraph (a) from any exemption granted to that category; and

(c)      withdraw any exemption granted under paragraph (a) to any category of persons or to any person and, in the case of a person, whether or not he or she was exempted as an individual or as a member of a category of persons.

(Section 10B inserted by section 12 of Act 19 of 2004)

 

11.     Visitor's visa

(1)      A visitor's visa may be issued for any purpose other than those provided for in sections 13 to 24, and subject to subsection (2), by the Director-General in respect of a foreigner who complies with section 10A and provides the financial or other guarantees prescribed in respect of his or her departure: Provided that such visa -

(a)      may not exceed three months and upon application may be renewed by the Director-General for a further period which shall not exceed three months; or

(b)      may be issued by the Director-General upon application for any period which may not exceed three years to a foreigner who has satisfied the Director-General that he or she controls sufficient available financial resources, which may be prescribed, and is engaged in the Republic in-

(i)      an academic sabbatical;

(ii)   voluntary or charitable activities;

(iii)   research; or

(iv)   any other prescribed activity.

(Section 11(1) substituted by section 13(a) of Act 19 of 2004)

(Section 11(1) substituted by section 4(a) of Act 3 of 2007)

(2)      The holder of a visitor's visa may not conduct work: Provided that the holder of a visitor's visa issued in terms of subsection (1)(a) or (b)(iv) may be authorised by the Director-General in the prescribed manner and subject to the prescribed requirements and terms and conditions to conduct work.

(Section 11(2) substituted by section 13(b) of Act 19 of 2004)

(Section 11(2) substituted by section 4(b) of Act 3 of 2007)

(3)      ……….

(Section 11(3) deleted by section 13(c) of Act 19 of 2004)

(4)      ……….

(Section 11(4) deleted by section 13(c) of Act 19 of 2004)

(5)      Special financial and other guarantees may be prescribed in respect of the issuance of a visitor's visa to certain prescribed classes of foreigners.

(Section 11(5) substituted by section 13(d) of Act 19 of 2004)

(6)      Notwithstanding the provisions of this section, a visitor's visa may be issued to a foreigner who is the spouse of a citizen or permanent resident and who does not qualify for any of the visas contemplated in sections 13 to 22: Provided that-

(a)      such visa shall only be valid while the good faith spousal relationship exists;

(b)      on application, the holder of such visa may be authorised to perform any of the activities provided for in the visas contemplated in sections 13 to 22; and

(c)      the holder of such visa shall apply for permanent residence contemplated in section 26(b) within three months from the date upon which he or she qualifies to be issued with that visa.

(Section 11(6) added by section 13(e) of Act 19 of 2004)

 

12.     ………

(Section 12 repealed by section 14 of Act 19 of 2004)

 

13.     Study visa

(1)      A study visa may be issued, in the prescribed manner, to a foreigner intending to study in the Republic for a period not less than the period of study, by the Director-General: Provided that such foreigner complies with the prescribed requirements.

(2)      The holder of a study visa may conduct certain work as prescribed.

(Section 13 amended by section 15 and 47 of Act 19 of 2004)

(Section 13 substituted by section 9 of Act 13 of 2011)

 

14.     Treaty visa

(1)      A treaty visa may be issued to a foreigner conducting activities in the Republic in terms of an international agreement to which the Republic is a party.

(2)      A treaty visa may be issued by -

(a)      the Director-General, as prescribed; or

(b)      a department or another organ of state responsible for the implementation of the treaty concerned under a delegation from the Director-General: Provided that-

(Words preceding section 14(2)(b)(i) substituted by section 10 of Act 13 of 2011)

(i)       information relating to the failure of such foreigner to comply with the terms and conditions of the visa and to depart when required is conveyed to the Director-General;

(ii)      the organ of state concerned satisfies the Director-General that, under the circumstances, it has the capacity to perform this function; and

(iii)     the visa is issued in accordance with the prescribed requirements, procedures and forms.

(Section 14(2) substituted by section 16 of Act 19 of 2004)

 

15.     Business visa

(1)      Subject to subsection (1A), a business visa may be issued by the Director-General to a foreigner intending to establish or invest in, or who has established or invested in, a business in the Republic in which he or she may be employed, and an appropriate visa for the duration of the business visa to the members of such foreigner's immediate family: Provided that-

(Words preceding section 15(1)(a) substituted by section 11(a) of Act 13 of 2011)

(a)      such foreigner invests the prescribed financial or capital contribution in such business;

(b)      the contribution referred to in paragraph (a) forms part of the intended book value of such business; and

(c)      such foreigner has undertaken to -

(i)       comply with any relevant registration requirement set out in any law administered by the South African Revenue Service; and

(ii)      employ the prescribed percentage or number of citizens or permanent residents within a period of 12 months from the date of issue of the visa.

(Section 15(1)(c) substituted by section 11(b) of Act 13 of 2011)

(1A)    No business visa may be issued or renewed in respect of any business undertaking which is listed as undesirable by the Minister from time to time in the Gazette, after consultation with the Minister responsible for trade and industry.

(Section 15(1A) inserted by section 11(c) of Act 13 of 2011)

(2)      The holder of a business visa may not conduct work other than work related to the business in respect of which the visa has been issued.

(3)      The Director-General may reduce or waive the financial or capital contribution referred to in subsection (1)(a) for businesses which are prescribed to be in the national interest, or when so requested by the Department of Trade and Industry.

(Section 15(3) substituted by section 5 of Act 3 of 2007)

(4)      The holder of a business visa shall submit proof to the satisfaction of the Director-General that he or she has fulfilled the requirements contemplated in subsection (1)(a) within 24 months of the issuance of the visa, and within every two years thereafter.

(5)      A business visa may be issued to a foreigner for more than one entry if multiple entries into the Republic by that foreigner over a period of time are necessary for that foreigner to conduct the business in question effectively.

(Section 15 substituted by section 17 of Act 19 of 2004)

 

16.     Crew visa

(1)      The Director-General may, as prescribed, issue a crew visa to a foreigner who is a member of the crew of a conveyance.

(Section 16(1) substituted by section 18 of Act 19 of 2004)

(2)      A crew visa may be issued on condition that the holder agrees to refrain from moving beyond a predetermined area.

(3)      The holder of a crew visa may not conduct work.

 

17.     Medical treatment visa

(1)      A medical treatment visa may be issued to a foreigner intending to receive medical treatment in the Republic for longer than three months by -

(a)      the Director-General, as prescribed, or

(b)      the Director-General through the registrars office or a designated official of an institution where the foreigner intends to receive treatment, provided that such institution -

(i)       has been approved by and is in good standing with the Director-General;

(ii)      certifies that it has received guarantees to its satisfaction that such foreigner's treatment costs will be paid;

(iii)     in the case of a minor, provides the name of a person present in South Africa who is, or has accepted to act, as such minor's guardian while in the Republic or certifies that such minor will be accompanied by a parent or guardian to the Republic;

(iv)     undertakes to provide a prescribed periodic certification that such foreigner is under treatment; and

(v)      undertakes to notify the Director-General when such foreigner has completed his or her treatment.

(Section 17(1) amended by section 47 of Act 19 of 2004)

(2)      When so requested by and after consultation with the Department of Health, the Director-General shall determine an ad hoc fee for the issuance of medical treatment visas in respect of institutions which are publicly funded or subsidised.

(Section 17(2) substituted by section 19 of Act 19 of 2004)

(3)      A medical treatment visa does not entitle the holder to conduct work.

 

18.     Relative's visa

(1)      A relative's visa may be issued for the prescribed period by the Director-General to a foreigner who is a member of the immediate family of a citizen or a permanent resident, provided that such citizen or permanent resident provides the prescribed financial assurance.

(Section 18(1) substituted by section 20 of Act 19 of 2004)

(2)      The holder of a relative's visa may not conduct work.

 

19.     Work visa

(1)      …..

(Section 19(1) deleted by section 12(a) of Act 13 of 2011)

(2)      A general work visa may be issued by the Director-General to a foreigner not falling within a category contemplated in subsection (4) and who complies with the prescribed requirements.

(Section 19(2) substituted by section 12(b) of Act 13 of 2011)

(3)      …..

(Section 19(3) deleted by section 12(c) of Act 13 of 2011)

(4)      Subject to any prescribed requirements, a critical skills work visa may be issued by the Director-General to an individual possessing such skills or qualifications determined to be critical for the Republic from time to time by the Minister by notice in the Gazette and to those members of his or her immediate family determined by the Director- General under the circumstances or as may be prescribed.

(Section 19(4) substituted by section 12(d) of Act 13 of 2011)

(5)      An intra-company transfer work visa may be issued by the Director- General to a foreigner who complies with the prescribed requirements.

(Section 19(5) amended by section 6 of Act 3 of 2007)

(Section 19(5) substituted by section 12(d) of Act 13 of 2011)

(6)      The holder of an intra-company transfer work visa may conduct work only for the employer referred to in subsection (5) and in accordance with the requirements set out in his or her visa.

(Section 19 substituted by section 21 of Act 19 of 2004)

 

20.     Retired person visa

(1)      A retired person visa may be issued for a period exceeding three months to a foreigner who intends to retire in the Republic, provided that the foreigner provides proof that such foreigner has -

(a)      the right to a pension or an irrevocable annuity or retirement account which will give such foreigner a prescribed minimum payment for the rest of his or her life from the country of his or her origin; or

(b)      a minimum prescribed net worth.

(1A)    The spouse and dependent children accompanying the holder of a retired person visa may be issued with an appropriate visa issued in terms of this Act.

(Section 20(1A) inserted by section 7 of Act 3 of 2007)

(2)      The Director-General may authorise the holder of a retired person visa to conduct work under terms and conditions as the Director-General may deem fit to determine under the circumstances.

(Section 20(2) amended by section 47 of Act 19 of 2004)

(3)      A retired person visa may -

(a)      allow its holder to sojourn in the Republic on a seasonal or continuous basis; and

(b)      not exceed a four-year period, at the expiry of which it may be renewed one or more times, subject to subsection (1).

 

21.     Corporate visa

(1)      Subject to subsection (1A), a corporate visa may be issued by the Director-General to a corporate applicant, to employ foreigners who may conduct work for such corporate applicant in the Republic.

(Section 21(1) substituted by section 13(a) of Act 13 of 2011)

(1A)    No corporate visa may be issued or renewed in respect of any business undertaking which is listed as undesirable by the Minister from time to time in the Gazette, after consultation with the Minister responsible for trade and industry.

(Section 21(1A) inserted by section 13(b) of Act 13 of 2011)

(2)      The Director-General shall determine, in consultation with the prescribed departments, the maximum number of foreigners to be employed in terms of a corporate visa by a corporate applicant, after having considered-

(Words preceding section 21(2)(a) substituted by section 13(c) of Act 13 of 2011)

(a)      the undertaking by the corporate applicant that it will-

(i)       take prescribed measures to ensure that any foreigner employed in terms of the corporate visa will at all times comply with the provisions of this Act and the corporate visa; and

(ii)      immediately notify the Director- General if it has reason to believe that such foreigner is no longer in compliance with subparagraph (i);

(b)      the financial guarantees posted in the prescribed amount and form by the corporate applicant to defray deportation and other costs should the corporate visa be withdrawn, or certain foreigners fail to leave the Republic when no longer subject to the corporate visa; and

(c)      corroborated representations made by the corporate applicant in respect of the need to employ foreigners, their job descriptions, the number of citizens or permanent residents employed and their positions, and other prescribed matters.

(3)      The Director-General may withdraw or amend a corporate visa for good and reasonable cause.

(4)      The Minister may, after consultation with the Minister of Trade and Industry or Minerals and Energy or Agriculture, as the case may be, and the Minister of Labour, designate certain industries, or segments thereof, in respect of which the Government may-

(a)      reduce or waive the requirements of subsection (2)(c);

(b)      enter into agreements with one or more foreign states and set as a condition of a corporate visa that its holder-

(i)       employs foreigners partially, mainly or wholly from such foreign countries; and

(ii)      remits a portion of the salaries of such foreigners to such foreign countries;

(c)      apply this subsection in respect of foreigners required for seasonal or temporary peak period employment; or

(d)      waive or reduce the requirement of subsection (2)(b) under special terms and conditions.

(5)      …...

(Section 21(5) deleted by section 13(d) of Act 13 of 2011)

(6)      A foreigner employed in terms of a corporate visa shall work for the holder of that corporate visa.

(Section 21(6) added by section 13(e) of Act 13 of 2011)

(Section 21 substituted by section 22 of Act 19 of 2004)

 

22.     Exchange visa

An exchange visa may be issued by the Director-General to a foreigner -

(a)      participating in a programme of cultural, economic or social exchange, organised or administered by an organ of state or a learning institution, in conjunction with a learning institution or an organ of a foreign state, provided that-

(i)       such organ of state or learning institution reports to the Director-General on the stages and the completion of the relevant programme together with other prescribed information; and

(ii)      it may be prescribed that, in respect of certain programmes, upon expiration of such visa such foreigner may not qualify for a status until he or she has complied with the requirement of a prescribed period of physical presence in his or her foreign country or of domicile outside the Republic; or

(Section 22(a) substituted by section 23(a) of Act 19 of 2004)

(b)      who is under 25 years of age and has received an offer to conduct work for no longer than one year: Provided that--

(Words preceding section 22(b)(i) substituted by section 14(a) of Act 13 of 2011)

(i)       the prospective employer certifies that the position exists, and has committed himself or herself to -

(aa)    pay such foreigner remuneration which complies with applicable legal requirements;

(bb)    provide for the welfare and the needs of such foreigner while in the Republic under the aforesaid visa; and

(cc)    report to the Director-General the failure of the foreigner to comply with the terms of his or her visa or to depart when so required;

(ii)      such foreigner may not conduct work other than work for which the visa is issued;

(Section 22(b)(ii) amended by section 14(b) of Act 13 of 2011, the Gazette refers to paragraph (iii), but we are of the view that the intention was to delete the word “and” at the end of Paragraph (ii))

(iii)     such foreigner may not qualify for a permanent residence visa within two years after the expiry of the exchange visa, which requirement may be waived by the Director-General in extraordinary circumstances.

(Section 22(b)(iii) substituted by section 23(b) of Act 19 of 2004)

(iv)   no visa may be granted under this section if the offer to conduct work pertains to an undesirable work as published by the Minister from time to time in the Gazette, after consultation with the Minister responsible for trade and industry.

(Section 22(b)(iv) added by section 14(c) of Act 13 of 2011)

(Section 22 amended by section 47 of Act 19 of 2004)

 

23.     Asylum transit visa

(1)      The Director-General may, subject to the prescribed procedure under which an asylum transit visa may be granted, issue an asylum transit visa to a person who at a port of entry claims to be an asylum seeker, valid for a period of five days only, to travel to the nearest Refugee Reception Office in order to apply for asylum.

(2)      Despite anything contained in any other law, when the visa contemplated in subsection (1) expires before the holder reports in person at a Refugee Reception Office in order to apply for asylum in terms of section 21 of the Refugees Act, 1998 (Act No. 130 of 1998), the holder of that visa shall become an illegal foreigner and be dealt with in accordance with this Act.

(Section 23 substituted by section 24 of Act 19 of 2004)

(Section 23 substituted by section 15 of Act 13 of 2011)

 

24.     ….

(Section 24 substituted by section 25 of Act 19 of 2004)

(Section 24 repealed by section 16 of Act 13 of 2011)

 

PERMANENT RESIDENCE

25.     Permanent residence

(1)      The holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship.

(2)      Subject to this Act, upon application, one of the permanent residence permits set out in sections 26 and 27 may be issued to a foreigner.

(3)      A permanent residence permit shall be issued on condition that the holder is not a prohibited or an undesirable person, and subject to section 28.

(Section 25(3) substituted by section 26 of Act 19 of 2004)

(4)      For good cause, as prescribed, the Director-General may attach reasonable individual terms and conditions to a permanent residence permit.

(Section 25(4) amended by section 47 of Act 19 of 2004)

 

26.     Direct residence

Subject to section 25 and any prescribed requirements, the Director-General may issue a permanent residence permit to a foreigner who-

(Words preceding section 26(a) substituted by section 17(a) of Act 13 of 2011)

(a)      has been the holder of a work visa in terms of this Act for five years and has proven to the satisfaction of the Director-General that he or she has received an offer for permanent employment;

(Section 26(a) substituted by section 17(b) of Act 13 of 2011)

(b)   has been the spouse of a citizen or permanent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists: Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;

(Section 26(b) substituted by section 17(b) of Act 13 of 2011)

(c)      is a child under the age of 21 of a citizen or permanent resident, provided that such permit shall lapse if such foreigner does not submit an application for its confirmation within two years of his or her having turned 18 years of age; or

(d)      is a child of a citizen.

(Section 26 substituted by section 27 of Act 19 of 2004)

 

27.     Residence on other grounds

The Director-General may, subject to any prescribed requirements, issue a permanent residence permit to a foreigner of good and sound character who-

(Words preceding section 27(a) substituted by section 18(a) of Act 13 of 2011)

(a)      has received an offer for permanent employment, provided that-

(i)       such foreigner has proven to the satisfaction of the Director-General that the position exists and that the position and related job description was advertised in the prescribed form and no suitably qualified citizen or permanent resident was available to fill it;

(ii)      the application falls within the specific professional category or within the specific occupational class contemplated in section 19(1); and

(Section 27(a)(ii) substituted by section 8(a) of Act 3 of 2007)

(iii)     the permit may be extended to such foreigner's spouse and children younger than 18 years of age;

(b)      taking into account any prescribed requirement, has demonstrated to the satisfaction of the Director-General that he or she possesses extraordinary skills or qualifications, and to those members of such foreigner's immediate family determined by the Director-General under the circumstances or as may be prescribed;

(c)      intends to establish or has established a business in the Republic, as contemplated in section 15, and investing in it or in an established business, as contemplated in section 15, the prescribed financial contribution to be part of the intended book value, and to the members of such foreigner's immediate family: Provided that-

(Words preceding section 27(c)(i) substituted by section 18(b) of Act 13 of 2011)

(i)       the Director-General may waive or reduce such financial or capital contribution for businesses prescribed to be in the national interest or when so requested by the Department of Trade and Industry; and

(ii)      the permanent residence permit shall lapse if the holder fails to prove within two years of the issuance of the permanent residence permit and three years thereafter, to the satisfaction of the Director-General, that the prescribed financial contribution to be part of the intended book value is still invested as contemplated in this paragraph;

(Section 27(c)(ii) substituted by section 18(c) of Act 13 of 2011)

(Section 27(c) substituted by section 8(b) of Act 3 of 2007)

(d)      is a refugee referred to in section 21(c) of the Refugees Act, 1998 (Act No. 130 of 1998), subject to any prescribed requirement;

(e)      intends to retire in the Republic, provided that such foreigner proves to the satisfaction of the Director-General that he or she-

(i)       has the right to a pension or an irrevocable annuity or retirement account which will give such foreigner a prescribed minimum payment for the rest of his or her life; or

(ii)      has a minimum prescribed net worth;

(f)      has proven to the satisfaction of the Director-General that he or she has a prescribed minimum net worth and has paid a prescribed amount to the Director-General; or

(g)      is the relative of a citizen or permanent resident within the first step of kinship.

(Section 27 substituted by section 28 of Act 19 of 2004)

 

28.     Withdrawal of permanent residence permit

(Heading substituted by section 29(a) of Act 19 of 2004)

The Director-General may withdraw a permanent residence permit if its holder -

(a)      is convicted of any of the offences-

(i)       listed in Schedules 1 and 2; or

(ii)      in terms of this Act;

(Section 28(a) substituted by section 29(b) of Act 19 of 2004)

(Section 28(a) substituted by section 9 of Act 3 of 2007)

(b)      has failed to comply with the terms and conditions of his or her permit;

(Section 28(b) substituted by section 29(c) of Act 19 of 2004)

(c)      has been absent from the Republic for more than three years, provided that -

(i)       upon showing good cause and upon prior application the Director-General may extend this period in specific cases;

(ii)      the time when such holder -

(aa)    was residing abroad while in the service of the State;

(bb)    was residing abroad while a representative or employee of a person or association of persons resident or established in the Republic;

(cc)    was residing abroad while in the service of an international organisation of which the State is a member;

(dd)    in the case of the spouse or dependent child of a person referred to in subitem (aa), (bb) or (cc), such spouse or child was residing with such person; or

(ee)    in the case of the spouse or dependent child of a person who is a South African citizen, such spouse or child was residing with such person, shall not be computed within such period;

(iii)     the Minister may grant an exemption from the requirement of residence in respect of certain residents or class of residents;

(Section 28(c)(iii) substituted by section 29(d) of Act 19 of 2004)

(iv)     the period of absence may only be interrupted by an admission and sojourn in the Republic; and

(v)      the requirement of residence in the Republic shall not affect any foreigner to whom exemption has been granted under section 31(2)(b) as a member of a category of persons, unless such foreigner previously entered the Republic or sojourned therein for the purpose of permanent residence under the authority of such exemption; or

(d)      has not taken up residence in the Republic within one year of the issuance of such permit.

(Section 28 amended by section 47 of Act 19 of 2004)

 

EXCLUSIONS AND EXEMPTIONS

29.     Prohibited persons

(1)      The following foreigners are prohibited persons and do not qualify for a port of entry visa, admission into the Republic, a visa or a permanent residence permit:

(Words preceding section 29(1)(a) substituted by section 19(a) of Act 13 of 2011)

(a)      Those infected with or carrying infectious, communicable or other diseases or viruses as prescribed;

(b)      anyone against whom a warrant is outstanding or a conviction has been secured in the Republic or a foreign country in respect of genocide, terrorism, human smuggling, trafficking in persons, murder, torture, drug-related charges, money laundering or kidnapping;

(Section 29(1)(b) substituted by section 19(b) of Act 13 of 2011)

(c)      anyone previously deported and not rehabilitated by the Director-General in the prescribed manner;

(d)      a member of or adherent to an association or organisation advocating the practice of racial hatred or social violence;

(e)      anyone who is or has been a member of or adherent to an organisation or association utilising crime or terrorism to pursue its ends; and

(f)      anyone found in possession of a fraudulent visa, passport, permanent residence permit or identification document.

(Section 29(1)(f) substituted by section 19(c) of Act 13 of 2011)

(2)      The Director-General may, for good cause, declare a person referred to in subsection (1) not to be a prohibited person.

(Section 29 substituted by section 30 of Act 19 of 2004)

 

30.     Undesirable persons

(1)      The following foreigners may be declared undesirable by the Director- General, as prescribed, and after such declaration do not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit:

(Words preceding section 30(1)(a) substituted by section 20(a) of Act 13 of 2011)

(a)      Anyone who is or is likely to become a public charge;

(b)      anyone identified as such by the Minister;

(c)      anyone who has been judicially declared incompetent;

(d)      an unrehabilitated insolvent;

(e)      anyone who has been ordered to depart in terms of this Act;

(f)      anyone who is a fugitive from justice;

(Section 30(1)(f) substituted by section 20(b) of Act 13 of 2011)

(g)      anyone with previous criminal convictions without the option of a fine for conduct which would be an offence in the Republic, with the exclusion of certain prescribed offences; and

(Section 30(1)(g) substituted by section 20(b) of Act 13 of 2011)

(h)   any person who has overstayed the prescribed number of times.

(Section 30(1)(h) added by section 20(c) of Act 13 of 2011)

(2)      Upon application by the affected person, the Minister may, for good cause, waive any of the grounds of undesirability.

(Section 30 substituted by section 31 of Act 19 of 2004)

 

31.     Exemptions

(1)      The following persons or categories of persons are not illegal foreigners:

(a)      a member of a military force of a foreign state which has been granted consent by the Government of the Republic to enter the Republic, while such consent subsists; and

(b)      the officers and crew of a public conveyance of a foreign state, while such conveyance is in the port of entry.

(Section 31(1)(b) substituted by section 32(a) of Act 19 of 2004)

(2)      Upon application, the Minister may under terms and conditions determined by him or her-

(a)      allow a distinguished visitor and certain members of his or her immediate family and members in his or her employ or of his or her household to be admitted to and sojourn in the Republic, provided that such foreigners do not intend to reside in the Republic permanently;

(b)      grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which would justify such a decision: Provided that the Minister may-

(i)       exclude one or more identified foreigners from such categories; and

(ii)      for good cause, withdraw such rights from a foreigner or a category of foreigners;

(c)      for good cause, waive any prescribed requirement or form; and

(d)      for good cause, withdraw an exemption granted by him or her in terms of this section.

(Section 31(2) substituted by section 32(b) of Act 19 of 2004)

(3)      The provisions of sections 10 and 25 shall not apply to a foreigner-

(a)      who prior to 1 February 1937 lawfully entered the Republic for the purpose of permanent residence therein;

(b)      who by virtue of the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), enjoys any immunities and privileges in the Republic; or

(c)      to whom a written authority or permission to enter the Republic has been issued in terms of section 1 or 3 of the Immigration Quota Act, 1930 (Act No. 8 of 1930), and who entered the Republic within the period stated in that authority or visa or within that period as lawfully extended.

(Section 31(3) added by section 32(c) of Act 19 of 2004)

 

ENFORCEMENT AND MONITORING

32.     Illegal foreigners

(1)      Any illegal foreigner shall depart, unless authorised by the Director-General in the prescribed manner to remain in the Republic pending his or her application for a status.

(Section 32(1) substituted by section 33 of Act 19 of 2004)

(1A) Foreigners who are illegal by virtue of having overstayed, as prescribed, do not qualify for a port of entry visa, a visa, admission into the Republic or a permanent residence permit during the prescribed period.

(1B) Upon application, as prescribed, from outside the Republic by the illegal foreigner contemplated in subsection (1A), the Director-General may waive the disqualification contemplated in subsection (1A) where exceptional circumstances, as prescribed, exist.

(Section 32 1A and 1B inserted by Immigration Amendment Act, 2016 No. 8 of 2016)

(2)      Any illegal foreigner shall be deported.

 

33.     Inspectorate

(1)      An inspectorate is hereby established and shall consist of the persons, including immigration officers, determined by the Minister.

(Section 33(1) substituted by section 34(a) of Act 19 of 2004)

(2)      (a)           The Minister shall appoint the head of the inspectorate.

(b)      The Director-General shall appoint immigration officers and other persons required to exercise the functions of the inspectorate.

(c)      The Minister may prescribe-

(i)       the procedure to be followed in the appointment of immigration officers or categories of immigration officers;

(ii)      the requirements for the appointment contemplated in subparagraph (i); and

(iii)     the allocation of functions to immigration officers or categories of immigration officers.

(Section 33(2) substituted by section 34(b) of Act 19 of 2004)

(3)      The inspectorate shall investigate any matter falling within the scope of this Act, subject to the directions of the Minister, and shall in the performance of its functions follow such procedure as may be prescribed.

(4)      An immigration officer may, for the purposes of this Act -

(a)      at any time before the commencement or in the course of an investigation conduct an inspection in loco in accordance with subsections (5) and (9);

(b)      by notice in writing call upon any person who is in possession of or has the custody of or control over any thing which in the opinion of the Director-General is relevant to the investigation to produce such thing, and the Director-General may inspect and retain any thing so produced for a reasonable time; and

(c)      by notice in writing call upon any person to appear before the Director-General and to give evidence or to answer questions relevant to the subject matter of the investigation:

Provided that any of such notices shall specify the time when and the place where the person to whom it is directed shall appear, be signed by an immigration officer, be served by an immigration officer or a sheriff by delivering a copy thereof to the person concerned or by leaving it at such person's last known place of residence or business, and shall specify the reason why the thing is to be produced or the evidence is to be given.

(Section 33(4) substituted by section 34(c) of Act 19 of 2004)

(5)      In the pursuance of this Act, an immigration officer may obtain a warrant to -

(a)      enter or search any premises for a person or thing or to make inquiries, including the power to -

(i)       examine any thing found in or upon such premises;

(ii)      request from the person who is in control of such premises or in whose possession or under whose control any thing is when it is found, or who is upon reasonable grounds believed to have information with regard to such thing, an explanation or information; and

(iii)     make copies of or extracts from any such thing found upon or in such premises;

(b)      apprehend an illegal foreigner, subject to section 34(1); or

(c)      after having issued a receipt in respect thereof, seize and remove documentation or any other thing which -

(i)       is concerned with or is upon reasonable grounds suspected of being concerned with any matter which is the subject of any investigation in terms of this Act; or

(ii)      contains, or is on reasonable grounds suspected to contain, information with regard to any such matter, provided that -

(aa)    any thing so seized shall be returned in good order as soon as possible after the purpose of its seizure has been accomplished; and

(bb)   a person from whom a book or document has been taken shall be allowed reasonable access, including the right to make copies at his or her expense.

(6)      A warrant referred to in subsection (5) shall be issued by a magistrate of a Court which has jurisdiction in the area where the premises in question are situated, and only if it appears to the magistrate from information on oath that there are reasonable grounds for believing that a thing mentioned in subsection (5) is upon or in such premises, and shall specify which of the acts mentioned in subsection (5) may be performed thereunder by the person to whom it is issued.

(7)      A warrant issued in terms of this section shall be executed by day unless the magistrate who issues the warrant authorises its execution by night at times which shall be reasonable, and any entry upon or search of any premises in terms of this section shall be conducted with strict regard to decency and order, including -

(a)      a person's right to, respect for, and the protection of, his or her dignity;

(b)      the right of a person to freedom and security; and

(c)      the right of a person to his or her personal privacy.

(8)      A person executing a warrant in terms of this section shall immediately before commencing with the execution -

(a)      identify himself or herself to the person in control of the premises, if such person is present, and hand to such person a copy of the warrant or, if such person is not present, affix such copy to a prominent place on the premises; and

(b)      supply such person at his or her request with particulars regarding his or her authority to execute such a warrant.

(9)

(a)      An immigration officer may, without a warrant, enter upon any premises, other than a private dwelling, and exercise the powers referred to in subsection (5)(a) and (c) -

(i)       if the person who is competent to do so consents to such entry, search, seizure and removal; or

(ii)      if he or she upon reasonable grounds believes that -

(aa)    the required warrant will be issued to him or her in terms of subsection (5) if he or she were to apply for such warrant; and

(bb)    the delay caused by the obtaining of any such warrant would defeat the object of the entry, search, seizure and removal.

(b)      Any entry and search in terms of paragraph (a) shall be executed by day, unless the execution thereof by night is justifiable and necessary.

(10)

(a)      Any person who may on the authority of a warrant issued in terms of subsection (5), or under the provisions of subsection (9), enter upon and search any premises, may use such force as may be reasonably necessary to overcome resistance to such entry or search; and

(b)      No person may enter upon or search any premises unless he or she has audibly demanded access to the premises and has notified the purpose of his or her entry, unless such person is upon reasonable grounds of the opinion that any thing may be destroyed or a person put at risk of bodily harm if such access is first demanded and such purpose is first notified.

(11)    If, during the execution of a warrant or the conducting of a search in terms of this section, a person claims that a thing found on or in the premises concerned contains privileged information and refuses its inspection or removal, the person executing the warrant or conducting the search shall, if he or she is of the opinion that the thing contains information which is relevant to the investigation and that such information is necessary for the investigation, request a person designated by a Court which has jurisdiction to seize and remove that thing for safe custody until a Court has made a ruling on the question whether the information concerned is privileged or not.

(12)    A warrant issued in terms of this section may be issued on any day and shall be in force until -

(a)      it is executed;

(b)      it is cancelled by the person who issued it or, if such person is not available, by a person with similar authority;

(c)      the expiry of one month from the day of its issue; or

(d)      the purpose for the issuing of the warrant has lapsed, whichever may occur first.

(13)    In consultation with the Minister and through diplomatic channels, the Director-General may obtain permission from the relevant authority of a foreign country to receive evidence or gather information in or from that country.

(Section 33(13) amended by section 47 of Act 19 of 2004)

(14)    When exercising powers under this section, an immigration officer shall clearly identify him or herself as such by means of adequate identification.

 

34.     Deportation and detention of illegal foreigners

(1)      Without the need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at a place determined by the Director-General, provided that the foreigner concerned -

(Words preceding paragraph (a) substituted by section 35(a) of Act 19 of 2004)

(a)      shall be notified in writing of the decision to deport him or her and of his or her right to appeal such decision in terms of this Act;

(b)      may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner;

(c)      shall be informed upon arrest or immediately thereafter of the rights set out in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands;

(d)      may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days, and

(e)      shall be held in detention in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights.

(2)      The detention of a person in terms of this Act elsewhere than on a ship and for purposes other than his or her deportation shall not exceed 48 hours from his or her arrest or the time at which such person was taken into custody for examination or other purposes, provided that if such period expires on a non-court day it shall be extended to four p.m. of the first following court day.

(3)      The Director-General may order a foreigner subject to deportation to deposit a sum sufficient to cover in whole or in part the expenses related to his or her deportation, detention, maintenance and custody and an officer may in the prescribed manner enforce payment of such deposit.

(Section 34(3) amended by section 47 of Act 19 of 2004)

(4)      Any person who fails to comply with an order made in terms of subsection (3) shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment not exceeding 12 months.

(5)      Any person other than a citizen or a permanent resident who having been -

(Words preceding paragraph (a) substituted by section 35(b) of Act 19 of 2004)

(a)      removed from the Republic or while being subject to an order issued under a law to leave the Republic, returns thereto without lawful authority or fails to comply with such order; or

(b)      refused admission, whether before or after the commencement of this Act, has entered the Republic, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months and may, if not already in detention, be arrested without warrant and deported under a warrant issued by a Court and, pending his or her removal, be detained in the manner and at the place determined by the Director-General.

(6)      Any illegal foreigner convicted and sentenced under this Act may be deported before the expiration of his or her sentence and his or her imprisonment shall terminate at that time.

(7)      On the basis of a warrant for the removal or release of a detained illegal foreigner, the person in charge of the prison concerned shall deliver such foreigner to that immigration officer or police officer bearing such warrant, and if such foreigner is not released he or she shall be deemed to be in lawful custody while in the custody of the immigration officer or police officer bearing such warrant.

(8)      A person at a port of entry who has been notified by an immigration officer that he or she is an illegal foreigner or in respect of whom the immigration officer has made a declaration to the master of the ship on which such foreigner arrived that such person is an illegal foreigner shall be detained by the master on such ship and, unless such master is informed by an immigration officer that such person has been found not to be an illegal foreigner, such master shall remove such person from the Republic, provided that an immigration officer may cause such person to be detained elsewhere than on such ship, or be removed in custody from such ship and detain him or her or cause him or her to be detained in the manner and at a place determined by the Director-General.

(9)      The person referred to in the preceding subsection shall, pending removal and while detained as contemplated in that subsection, be deemed to be in the custody of the master of such ship and not of the immigration officer or the Director-General, and such master shall be liable to pay the costs of the detention and maintenance of such person while so detained if the master knew or should reasonably have known that such person was an illegal foreigner, provided that -

(a)      if such master fails to comply with the provisions of that subsection, or if required to pay such costs, such master or the owner of such ship shall forfeit in respect of every person concerned a sum fixed by the immigration officer, not exceeding an amount prescribed from time to time;

(b)      the immigration officer may, before such person is removed from such ship, require the master or the owner of such ship to deposit a sum sufficient to cover any expenses that may be incurred by the Director-General in connection with the deportation, detention, maintenance and custody of such person, if there are grounds to believe that the master knew or should reasonably have known that such person was an illegal foreigner;

(c)      if such person is not removed from the Republic on the ship on which he or she was conveyed to the Republic, except by reason of not being an illegal foreigner, and if the master knew or should have known that such person was an illegal foreigner, the owner of that ship shall at the request of an immigration officer convey that person, or have him or her conveyed, free of charge to the State to a place outside the Republic, and any person, other than an immigration officer, charged by the Director-General with the duty of escorting that person to such place, shall be deemed to be an immigration officer while performing such duty; and

(d)      if the owner of such ship fails to comply with the provisions of this section, he or she shall forfeit in respect of each such person a sum fixed by the immigration officer, not exceeding an amount prescribed from time to time.

(Section 34(9) amended by section 47 of Act 19 of 2004)

(10)    A person who escapes or attempts to escape from detention imposed under this Act shall be guilty of an offence and may be arrested without a warrant.

(11)    A person detained on a ship may not be held in detention for longer than 30 days without an order of court.

(Section 34(11) added by section 35(c) of Act 19 of 2004)

 

35.     Duties with regard to conveyances

(1)      Save for exceptional circumstances necessitating otherwise, no person in charge of a conveyance shall cause that conveyance to enter the Republic at any place other than at a port of entry.

(2)

(a)      The owner or person in charge of a prescribed conveyance entering into, departing from or in transit through the Republic, shall comply with the provisions of this section by enabling electronic transmission and receipt of the prescribed information to the Director-General in the prescribed manner.

(b)      The owner or person in charge of a conveyance entering into, departing from or in transit through the Republic, shall within the prescribed period prior to boarding persons onto his or her conveyance, electronically transmit the prescribed information to the Director-General in respect of each person.

(c)      The owner or person in charge of a conveyance shall act in accordance with a boarding advice issued by the Director-General in respect of each person contemplated in paragraph (b).

(3)

(a)      The owner or person in charge of a conveyance entering into, departing from or in transit through the Republic by air or conveying persons on domestic flights within the Republic, shall comply with the provisions of this section by enabling electronic transmission of the prescribed passenger name record information in respect of all persons booked to travel on his or her conveyance to the Director-General in the prescribed manner.

(b)      The owner or person contemplated in paragraph (a) shall, within the prescribed period prior to the scheduled time of departure of his or her conveyance, electronically transmit the prescribed passenger name record information to the Director-General in the prescribed manner.

(c)      The information contemplated in paragraph (a) shall be used by the Director-General for the better achievement of the objectives of this Act and the Director-General shall adopt prescribed measures to safeguard the protection of that information in accordance with legislation governing the protection of personal information.

(4)      An immigration officer or other authorised person employed by the Director-General may-

(a)      board any conveyance which is entering or has entered into any port of entry and on good cause shown prohibit or regulate disembarkation from, or the offloading of, such conveyance in order to ascertain the status or citizenship of its passengers; and

(b)      request the person in control of a port of entry or any person acting under his or her authority to order the person in charge of a conveyance to park, moor or anchor that conveyance in such port of entry at such distance from the shore or landing place or in such position as such immigration officer or other authorised person employed by the Director-General may direct.

(5)      The person in charge of a conveyance entering or prior to entering a port of entry shall upon demand deliver to an immigration officer-

(a)      a list stating-

(i)       the names of all passengers on board of that conveyance, classified according to their respective destinations; and

(ii)      such other details as may be prescribed;

(b)      a list of stowaways, if any have been found;

(c)      a list of the crew and all other persons, other than passengers and stowaways, employed, carried or present on the conveyance; and

(d)      a return, under the hand of the medical officer of that conveyance or, if there is no such medical officer, under the hand of the person in charge of a conveyance himself or herself, stating-

(i)       any cases of disease, whether infectious or otherwise, which have occurred or are suspected to have occurred upon the voyage;

(ii)      the names of the persons who suffered or arc suffering from such disease;

(iii)     details of any birth or death which occurred upon the voyage between such port of entry and a previous port; and

(iv)     any other prescribed matter or event:

Provided that such immigration officer may-

(aa)   exempt from the requirements of this subsection the master of a ship destined for any other port in the Republic, subject to compliance with the duty to deliver such lists or return at such port and with any directive such immigration officer may issue to the master; and

(bb)   if satisfied that a name should be added to or deleted from any such lists, authorise such addition or deletion.

(6)      If a conveyance arrives at a port of entry with a passenger on board bound for a destination outside the Republic and that passenger is not on board when the conveyance leaves such port of entry and has not been admitted, the person in charge or the owner of that conveyance shall forfeit a sum fixed by the immigration officer within a prescribed limit.

(7)      An immigration officer may require the person in charge of a conveyance to muster the crew of such conveyance on the arrival of such conveyance in any port of entry and again before it leaves such port of entry.

(8)      The competent officer of customs at any port of entry may refuse to give to the person in charge of a conveyance clearance papers to leave that port of entry, unless he or she has complied with this Act and produced a certificate issued by an immigration officer to that effect.

(9)      A person in charge of a conveyance shall ensure that any foreigner conveyed to a port of entry, for purposes of travelling to a foreign country, holds a valid passport and transit visa or port of entry visa, if required.

(10)    A person in charge of a conveyance shall be responsible for the detention and removal of a person conveyed if such person is refused admission in the prescribed manner, as well as for any costs related to such detention and removal incurred by the Department.

 (Section 35 substituted by section 36 of Act 19 of 2004)

(Section 35 substituted by section 21 of Act 13 of 2011)

 

36.     ……….

(Section 36 repealed by section 37 of Act 19 of 2004)

 

IMMIGRATION COURTS

37.     ……….

(Commencement date of section 37: to be proclaimed)

(Section 37 repealed by section 38 of Act 19 of 2004)

 

DUTIES AND OBLIGATIONS

38.     Employment

(1)      No person shall employ -

(a)      an illegal foreigner;

(b)      a foreigner whose status does not authorise him or her to be employed by such person; or

(c)      a foreigner on terms, terms and conditions or in a capacity different from those contemplated in such foreigner's status.

(2)      An employer shall make a good faith effort to ascertain that no illegal foreigner is employed by him or her or to ascertain the status or citizenship of those whom he or she employs.

(3)      If it is proven, other than by means of the presumption referred to in subsection (5), that a person was employed in violation of subsection (1), it shall be presumed that the employer knew at the time of the employment that such person was among those referred to in subsection (1), unless such employer proves that he or she -

(a)      employed such person in good faith; and

(b)      complied with subsection (2), provided that a stricter compliance shall be required of any employer who employs more than five employees or has been found guilty of a prior offence under this Act related to this section.

(4)      An employer employing a foreigner shall -

(a)      for two years after the termination of such foreigner's employment, keep the prescribed records relating thereto; and

(b)      report to the Director-General -

(i)       the termination of such foreigner's employment; and

(ii)      any breach on the side of the foreigner of his or her status.

(Section 38(4) amended by section 47 of Act 19 of 2004)

(5)      If an illegal foreigner is found on any premises where a business is conducted, it shall be presumed that such foreigner was employed by the person who has control over such premises, unless prima facie evidence to the contrary is adduced.

 

39.     Learning institutions

(1)      No learning institution shall knowingly provide training or instruction to -

(a)      an illegal foreigner;

(b)      a foreigner whose status does not authorise him or her to receive such training or instruction by such person; or

(c)      a foreigner on terms or conditions or in a capacity different from those contemplated in such foreigner's status.

(2)      If an illegal foreigner is found on any premises where instruction or training is provided, it shall be presumed that such foreigner was receiving instruction or training from, or allowed to receive instruction or training by, the person who has control over such premises, unless prima facie evidence to the contrary is adduced.

 

40.     Keeping of registers of lodgers by certain persons

(1)      The person in charge of any premises, whether furnished or unfurnished, where lodging or sleeping accommodation is provided for payment or reward shall, if those premises fall within a prescribed class, in the prescribed manner keep a register of all persons who are provided with lodging or sleeping accommodation thereon, and every such person shall sign the register and furnish therein the prescribed particulars regarding himself or herself.

(2)      Every person in charge of premises referred to in subsection (1) shall, when required to do so by an immigration officer or police officer, produce the register referred to in that subsection for inspection.

(3)      Any person who-

(a)      contravenes or fails to comply with a provision of subsection (1) or (2);

(b)      gives false or incorrect particulars for the purposes of subsection (1); or

(c)      hinders any officer referred to in subsection (2) in the performance of his or her functions, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.

(Section 40 substituted by section 39 of Act 19 of 2004)

 

41.     Identification

(1)      When so requested by an immigration officer or a police officer, any person shall identify himself or herself as a citizen, permanent resident or foreigner, and if on reasonable grounds such immigration officer or police officer is not satisfied that such person is entitled to be in the Republic, such person may be interviewed by an immigration officer or a police officer about his or her identity or status, and such immigration officer or police officer may take such person into custody without a warrant, and shall take reasonable steps, as may be prescribed, to assist the person in verifying his or her identity or status, and thereafter, if necessary detain him or her in terms of section 34.

(2)      Any person who assists a person contemplated in subsection (1) to evade the processes contemplated in that subsection, or interferes with such processes, shall be guilty of an offence.

(Section 41 substituted by section 40 of Act 19 of 2004)

 

42.     Aiding and abetting illegal foreigners

(1)      Subject to this Act, and save for necessary humanitarian assistance, no person, shall aid, abet, assist, enable or in any manner help -

(a)      an illegal foreigner; or

(b)      a foreigner in respect of any matter, conduct or transaction which violates such foreigner's status, when applicable, including but not limited to -

(i)       providing instruction or training to him or her, or allowing him or her to receive instruction or training;

(ii)      issuing to him or her a licence or other authorisation to conduct any business or to carry on any profession or occupation;

(iii)     entering into an agreement with him or her for the conduct of any business or the carrying on of any profession or occupation;

(iv)     conducting any business or carrying on any profession or occupation in cooperation with him or her;

(v)      assisting, enabling or in any manner helping him or her to conduct any business or carry on any profession or occupation;

(vi)     obtaining a licence or other authority for him or her or on his or her behalf to conduct any business or to carry on any profession or occupation;

(vii)    doing anything for him or her or on his or her behalf in connection with his or her business or profession or occupation;

(viii)    harbouring him or her, which includes providing accommodation; or

(ix)     letting or selling or in any manner making available any immoveable property in the Republic to him or her.

(2)      In any criminal proceedings arising out of this section, it is no defence to aver that the status of the foreigner concerned, or whether he or she was an illegal foreigner, was unknown to the accused if it is proved that the accused ought reasonably to have known the status of the foreigner, or whether he or she was an illegal foreigner.

 

43.     Obligation of foreigners

A foreigner shall -

(a)      abide by the terms and conditions of his or her status, including any terms and conditions attached to the relevant visa or permanent residence permit, as the case may be, by the Director- General upon its issuance, extension or renewal, and that status shall expire upon the violation of those terms and conditions; and

(Section 43(a) substituted by section 41 of Act 19 of 2004)

(Section 43(a) substituted by section 22 of Act 13 of 2011)

(b)      depart upon expiry of his or her status.

 

44.     Organs of state

When possible, any organ of state shall endeavour to ascertain the status or citizenship of the persons receiving its services and shall report to the Director-General any illegal foreigner, or any person whose status or citizenship could not be ascertained, provided that such requirement shall not prevent the rendering of services to which illegal foreigners and foreigners are entitled under the Constitution or any law.

(Section 44 substituted by section 42 of Act 19 of 2004)

 

45.     Other institutions

Prescribed institutions or persons other than organs of state may, in the prescribed manner, be required to endeavour to ascertain the status or citizenship of the persons with whom they enter into commercial transactions, as prescribed, and shall report to the Director-General any illegal foreigner, or any person whose status or citizenship could not be ascertained, provided that such requirement shall not prevent the rendering of services or performance to which illegal foreigners and foreigners are entitled under the Constitution or any law.

(Section 45 substituted by section 43 of Act 19 of 2004)

 

MISCELLANEOUS

46.     Immigration practitioners

 (Section 46 amended by section 47 of Act 19 of 2004)

(Section 46 repealed by section 23 of Act 13 of 2011)

 

47.     ……….

(Section 47 repealed by section 44 of Act 19 of 2004)

 

48.     Foreigners erroneously allowed to enter 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.

 

OFFENCES

49.     Offences

(1)

(a)      Anyone who enters or remains in, or departs from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years.

(b)      Any illegal foreigner who fails to depart when so ordered by the Director-General, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years.

(Section 49(1) substituted by section 45(a) of Act 19 of 2004)

(Section 49(1) substituted by section 24 of Act 13 of 2011)

(2)      Anyone who knowingly assists a person to enter or remain in, or depart from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding five years.

(Section 49(2) substituted by section 45(a) of Act 19 of 2004)

(Section 49(2) substituted by section 24 of Act 13 of 2011)

(3)      Anyone who knowingly employs an illegal foreigner or a foreigner in violation of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year: Provided that such person's second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine, and the third or subsequent convictions of such offences by imprisonment not exceeding five years without the option of a fine.

(Section 49(3) substituted by section 24 of Act 13 of 2011)

(4)      Anyone who intentionally facilitates an illegal foreigner to receive public services to which such illegal foreigner is not entitled shall be guilty of an offence and liable on conviction to a fine.

(5)      Any public servant who provides false or intentionally inaccurate or unauthorised documentation or benefit to an illegal foreigner, or otherwise facilitates such illegal foreigner to disguise his or her identity or status, or accepts any undue financial or other consideration to perform an act or to exercise his or her discretion in terms of this Act, shall be guilty of an offence and liable on conviction to imprisonment not exceeding eight years without the option of a fine: Provided that if such public servant is employed by the Department, such offence shall be punishable by imprisonment not exceeding 15 years without the option of a fine.

(Section 49(5) substituted by section 24 of Act 13 of 2011)

(6)      Anyone failing to comply with one of the duties or obligations set out under sections 38 to 46, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding five years.

(Section 49(6) substituted by section 45(b) of Act 19 of 2004)

(Section 49(6) substituted by section 24 of Act 13 of 2011)

(7)      Anyone participating in a conspiracy of two or more persons to conduct an activity intended to contravene this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding seven years: Provided that if part of such activity is conducted or intended to be conducted in a foreign country, the offence shall be punishable by imprisonment not exceeding eight years without the option of a fine.

(Section 49(7) substituted by section 45(b) of Act 19 of 2004)

(Section 49(7) substituted by section 24 of Act 13 of 2011)

(8)      Anyone who wilfully or through gross negligence produces a false certification contemplated by this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding three years.

(Section 49(8) substituted by section 45(b) of Act 19 of 2004)

(Section 49(8) substituted by section 24 of Act 13 of 2011)

(9)      Anyone, other than a duly authorised public servant, who manufactures or provides or causes the manufacturing or provision of a document purporting to be a document issued or administered by the Department, shall be guilty of an offence and liable on conviction to imprisonment not exceeding 10 years without the option of a fine.

(Section 49(9) substituted by section 45(b) of Act 19 of 2004)

(Section 49(9) substituted by section 24 of Act 13 of 2011)

(10)    Anyone who through offers of financial or other consideration or threats, compels or induces an officer to contravene this Act or to breach such officer's duties, shall be guilty of an offence and liable on conviction-

(a)      to a fine or to imprisonment not exceeding five years; or

(b)      if subsequently such officer in fact contravenes this Act or breaches his or her duties, to imprisonment not exceeding five years without the option of a fine.

(Section 49(10) substituted by section 24 of Act 13 of 2011)

(11)    Anyone guilty of the offence contemplated in section 34(10) shall be liable on conviction to a fine or to imprisonment not exceeding three years.

(Section 49(11) amended by section 45(c) of Act 19 of 2004)

(Section 49(11) substituted by section 24 of Act 13 of 2011)

(12)    A court may make an order as to costs in favour of the Department to the extent necessary to defray the expenses referred to in section 34(3) against-

(a)      any illegal foreigner referred to in section 34 (3);

(b)      any person who contravened section 38 or 42;

(c)      any person who conveyed into the Republic a foreigner without the required transit visa; or

(d)      any person who committed an offence contemplated in subsection (5), (7), (8) or (10), which order shall have the effect of a civil judgment of that court.

(Section 49(12) substituted by section 45(d) of Act 19 of 2004)

(13)    Any person who pretends to be, or impersonates, an immigration officer, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding eight years.

(Section 49(13) added by section 45(e) of Act 19 of 2004)

(Section 49(13) substituted by section 24 of Act 13 of 2011)

(14)    Any person who for the purpose of entering or remaining in, or departing from, or of facilitating or assisting the entrance into, residence in or departure from, the Republic, whether in contravention of this Act or not, commits any fraudulent act or makes any false representation by conduct, statement or otherwise, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding eight years.

(Section 49(14) added by section 45(e) of Act 19 of 2004)

(Section 49(14) substituted by section 24 of Act 13 of 2011)

(15)    Any natural or juristic person, or a partnership, who-

(a)      for the purpose of entering the Republic, or of remaining therein, in contravention of this Act, or departing from the Republic, or of assisting any other person so as to enter or so to remain or so to depart, utters, uses or attempts to use-

(i)       any permanent residence permit, port of entry visa, visa, certificate, written authority or other document which has been issued by lawful authority, or which, though issued by lawful authority, he, she or it is not entitled to use; or

(ii)      any fabricated or falsified permanent residence permit, port of entry visa, visa, certificate, written authority or other document; or

(b)      without sufficient cause has in his, her or its possession-

(i)       any stamp or other instrument which is used or capable of being used for purposes of fabricating or falsifying or unlawfully recording on any document any endorsement under this Act or required to be submitted in terms of this Act;

(ii)      any form officially printed for purposes of issuing any permanent residence permit, port of entry visa, visa, certificate, written authority or other document under this Act or required to be submitted in terms of this Act, or any reproduction or imitation of any such form;

(iii)     any passport, travel document, identity document or other document used for the facilitation of movement across borders, which is blank or reflects particulars other than those of the person in whose possession it is found; or

(iv)     any fabricated or falsified passport, travel document, identity document or other document used for the facilitation of movement across borders, shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years without the option of a fine.

(Section 49(15) added by section 45(e) of Act 19 of 2004)

(Section 49(15) substituted by section 24 of Act 13 of 2011)

(16)    Any person who-

(a)      contravenes or fails to comply with any provision of this Act, if such contravention or failure is not elsewhere declared an offence, or if no penalty is prescribed in respect of an offence; or

(b)      commits any other offence under this Act in respect of which no penalty is elsewhere prescribed, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding seven years.

(Section 49(16) added by section 45(e) of Act 19 of 2004)

(Section 49(16) substituted by section 24 of Act 13 of 2011)

 

50.     Administrative offences

(1)      Any foreigner who leaves the Republic after the expiry of his or her visa shall be dealt with in terms of section 32(1A).

(Section 50(1) amended by Immigration Amendment Act, 2016 No. 8 of 2016)

(Section 50(1) substituted by section 25(a) of Act 13 of 2011)

(2)      Anyone who through negligence produces an incorrect certification contemplated by this Act shall be liable to an administrative fine of a prescribed amount not exceeding R8000, which fine shall be imposed by the Director-General.

(Section 50(2) amended by section 47 of Act 19 of 2004)

(3)      Any owner or person in charge of a conveyance who through negligence contravenes the provisions of section 35(9), shall be liable to an administrative fine of a prescribed amount, which fine shall be imposed by the Director-General.

(Section 50(3) substituted by section 46 of Act 19 of 2004)

(Section 50(3) substituted by section 25(b) of Act 13 of 2011)

(4)      Any owner or person in charge of a conveyance who-

(a)      fails to comply with the provisions of section 35(2)(a), (b) or (c) or (3)(a); or

(b)      transmits inaccurate information contemplated in section 35(2)(b) or (3)(b), shall be liable to an administrative fine of a prescribed amount, which line shall be imposed by the Director-General.

(Section 50(4) added by section 25(c) of Act 13 of 2011)

 

TRANSITIONAL PROVISIONS

51.     Transitional definitions

In respect of sections 52 and 53 the following additional or different definitions shall apply, unless the context requires otherwise:

(i)       “prescribe” means to provide through regulations and “prescribed” has a correspondent meaning;

(ii)      “previous Act” means the Aliens Control Act, 1991 (Act No. 96 of 1991);

(iii)     “published” means published in the Government Gazette; and

(iv)     “regulations” means both general and specific rules adopted by the Minister and published.

 

52.     Functions of Department and Board

(1)      Until the Board is duly constituted and operational, any regulation required in terms of this Act shall be prescribed.

(2)      Subject to this Act, any regulations adopted under the previous Act shall remain in force and effect until repealed or amended.

(3)      The Board shall be convened within 90 days of the coming into force of this Act.

(Commencement date of section 52: 20 February 2003)

 

53.     Existing visas

(1)      Any permanent residence permit validly issued in terms of the previous Act shall be deemed to have been issued in terms of, and in compliance with, this Act.

(2)      Any visa issued in terms of the previous Act for a determined period shall continue in force and effect in accordance with the terms and conditions under which it was issued, but may only be renewed in terms of this Act, provided that -

(i)       the Department may waive the requirement to submit a new application, and

(ii)      for good cause the Department may authorise a visa to be renewed in terms of the previous Act.

(3)      Any exemptions for an undetermined period granted in terms of section 28(2) of the previous Act shall be deemed a permanent residence permit for the purposes of this Act, and any exemption granted for a determined period shall continue in force and effect in accordance with the terms and conditions under which it was issued.

(4)      Visas issued under section 41 of the previous Act shall continue in force and effect in accordance with the terms and conditions under which they were issued, but may not be renewed.

 

54.     Repeal of laws

(1)      The laws mentioned in Schedule 3 are hereby repealed or amended to the extent set out in its third column.

(2)      Anything done under the provisions of a law repealed by subsection (1) and which could have been done under this Act shall be deemed to have been done under this Act.

 

55.     Short title and commencement

(1)      This Act shall be referred to as the Immigration Act, 2002, and shall come into force and effect on a date determined by the President by proclamation in the Government Gazette.

(2)      The date of coming into force and effect of section 37 shall be determined in consultation with the Minister for Justice and Constitutional Development.

 

Schedule 1

  • Offences relating to section 28(a) of this Act (Heading of Schedule 1 substituted by section 10 of Act 3 of 2007) 
  • Treason against the Republic 
  • Murder 
  • Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. Respectively Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. respectively 
  • Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively 
  • Trafficking in persons for sexual purposes by a person as contemplated in section 71(1), (2) or (6) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 
  • Robbery 
  • Kidnapping 
  • Assault when a dangerous wound is inflicted 
  • Arson 
  • Any conspiracy, incitement or attempt to commit an offence referred to in this Schedule.

(Schedule 1 substituted by section 68 of Act 32 of 2007)

 

Schedule 2

Offences relating to section 28(a) of this Act

(Heading of Schedule 2 substituted by section 11 of Act 3 of 2007)

  • An offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004 
  • Sedition 
  • Public violence 
  • Culpable Homicide 
  • Bestiality
  • Malicious injury to property 
  • Breaking and entering any premises 
  • Theft 
  • Receiving stolen property knowing it to have been stolen 
  • Fraud
  • Forgery or uttering a forged document knowing it to have been forged
  • Offences relating to coinage
  • Any offence relating to the illicit possession, conveyance or supply of dependence producing drugs
  • Any conspiracy, incitement or attempt to commit an offence referred to in this Schedule
  • Any offence the punishment of which may be a period of imprisonment exceeding six months without the option of a fine 

(Schedule 2 amended by section 36 of Act 12 of 2004)

 

Schedule 3

Acts repealed

 

 

No and year of Act

 

Short Title

 

Extent of the repeal

 

Act No. 96 of 1991

 

Aliens Control Act, 1991

 

The whole repealed

 

Act No. 75 of 1995

 

Aliens Control Amendment Act, 1995

 

The whole repealed

 

(Schedule 3 substituted by section 48 of Act 19 of 2004)

Last modified onFriday, 20 January 2017 19:45
  • Gazetted: 27 September 2016
  • Gazette Number: No. 40302
Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 82 416 7712

T: +27 12 669 3289

T: +27 11 462 0982

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