STEFANIE DE SAUDE DARBANDI: Scores of foreigners face criminal records over conflicting visa information

Foreigners whose visas expired during the pandemic may now be facing bans or even criminal records due to conflicting information issued recently on the extension of visas.

Potentially hundreds of people have found themselves in limbo and facing penalties after new directions issued by the department of home affairs on the extension of visas that expired during the lockdown.

After the implementation of the national state of disaster in March 2020, when home affairs services were scaled down and travel restrictions imposed, foreigners in SA were informed that the validity of their visas had been extended. As the lockdown continued, further extensions were granted, with home affairs minister Aaron Motsoaledi saying in June 2021 that the validity period of legally issued short-term and longer-term temporary visas issued for 90 days up to three years, such as study visas, (treaty visa, business visa, medical treatment visa), relatives’ visas, work visas (general work visa, critical skills), retired persons’ visas and exchange visas, which expired during the lockdown would be extended to September 30 2021.

The validity of asylum and refugee permits was also extended until September 30. (It was noted in the minister’s statement that as of June 25, the department had approved the extension of 9,788 section 24 [refugee status] and 28 249 section 22 [asylum seeker] permits since the online extension system was activated in April 2021.)

People who held expired visas thus started making arrangements to travel out of SA ahead of the September 30 deadline. However, on September 28, consolidated directions issued by the department indicated that “the date until which the validity of visas and permits is extended” was now December 31.  Foreigners inside SA whose visas expired during the lockdown thus had until December 31 to reapply for visas or visa exemptions without the need to first obtain authorisation in terms of the Immigration Act of 2002 to remain in the country.

Future ban

People cancelled their travel plans in light of this communication, only to discover two days later that the extension, despite its clear wording, did not apply to the holders of visas under the Immigration Act after all. On September 30, the minister stated that the extension only applied to asylum seeker and refugee permits, and people in SA who have applied for immigration waivers. The statement said visa holders had been given an opportunity to extend their visas or leave the republic on or before September 30 2021.

This led to a rush of people to VFS offices — to no avail. Because any payments made on September 30 would only reflect the next day or even later, they were too late to renew their visas. These foreigners are thus now in SA illegally, facing a future ban if they return to their countries of birth and a fine if they remain in SA.

Many of these people, who live, work and run businesses in SA, are deeply concerned that if they leave the country they could face a ban of between one and five years, with serious impacts on their families, jobs, employees and even homes and pets in SA. Others, assuming an admission of guilt fine for overstaying is just a slap on the wrist, are now discovering that signing admission of guilt will automatically give them a criminal record — making them undesirable in the eyes of the department of home affairs.

After 18 months of limited services, the department of home affairs faces a huge backlog. Therefore processes that were slow in “normal” times are glacial now. Waivers and visa applications and extensions are taking months, and in some cases a year, to obtain.

Create employment

Despite the lifting of lockdown restrictions and the vaccination rollout, the department is not making progress on applications that affect the lives of tens of thousands of people. This situation is likely to worsen in December, when home affairs operates with fewer staff and VFS closes for the holidays.

It should be noted that thousands of the foreigners in question are not refugees and asylum seekers, but contributing members of society who bring revenue to the communities where they live, and often also create employment in SA.

They may be professionals with critical skills, who are also in limbo due to slow progress in the development of the new critical skills list. This list, still in draft form after months as a work in progress, omits scores of people by being skewed towards academic qualifications over experience. We understand that former home affairs director Mavuso Msimang has been tasked by the president to speed up the process of finalising the critical skills list, which could go some way towards enabling foreign skills and investment to come back into SA. We welcome and look forward to Msimang’s involvement. 

However, for the rest of the foreigners now stranded between a rock and a hard place, securing a future in SA looks like a tall order. 

• De Saude Darbandi is immigration and citizenship law specialist at De Saude Darbandi Attorneys.