C. Attendances on Department for Lifting Bans after being declared an Undesirable Person in terms of section 30(1)(h) of the Act and Regulation 27(3) of the 2014 Regulations
Previously an overstay upon departure from South African would be met with a fine.
However, when the Department amended the Act in 2014, an overstay would now be met with a ban for overstays, which results in being declared an undesirable person in terms of section 30(1)(h) and section 50(1) of the Act, read with Regulation 27. This changed the landscape of overstays and treatment of foreign persons indefinitely.
Worst of all, it allowed the Department to trigger a sanction against an overstay on departure at our international airports without having any ability to explain the circumstances behind an overstay regardless of the reason or extent of delay. For instance, being in an accident and confined to hospital when the visa expired, or just falling ill before departure, or to be separated from your South African spouse and children for up to five years.
At Smiedt & Associates we will deal with these issues from the instant that you are banned when passing through immigration on departure through our international airports or land borders.
On departure, through such borders or airports you will receive a letter of declaration of undesirability setting out the exact number of days you overstayed, correctly or incorrectly, and it will state the length of the ban.
Note, where the overstay is less than 30 days you will be banned and declared undesirable for a period of a year without being able to return to South Africa. If, however, you have overstayed for more than 30 days you will be banned and declared undesirable for a period of five years.
We will manage the process from the very inception of being banned and urgently submit an internal appeal which is compulsory and we would set out the merits and the law and seek to lift the ban with immediate effect.
Once we have submitted an internal appeal on behalf of our client, we will then prepare court papers to seek an order to lift the ban immediately and allow for the return of such previous banned person.
The ban will be lifted and it will have no legal effect on any future travel as if the ban never took place.
Both the internal appeal in terms of section 30(2) of the Act and court papers are designed to prompt the outcome from the Department and are prepared and finalised in a matter of days in order to limit delays in not being able to return to South Africa, especially where there are grounds of urgency created by the need to return to the country.