The Department will seek to refuse admission to foreigners who are for some reason not entitled to admission into South Africa.

At times, this can be an arbitrary exercise of power by an immigration officer even where the foreign person has a valid visa or right of entry.

The immigration officer must issue a Form 37 refusing entry and give the grounds behind such refusal.

Invariably, matters of this nature, end up going to court on an urgent basis so the grounds must be very clear that would allow entry into the country by showing ‘clean hands’ in the visa or permit procurement process.

Smiedt & Associates is very familiar with these processes and we are of the view that if the foreign person’s visa is legitimate and issued by the authorities but there is some query that is beyond your knowledge you should consider exercising your rights to remain and be admitted into South Africa. We would take the matter to court on an urgent basis to demonstrate compliance with all the admission requirements in terms of section 9 of the Act.

However, if the Department is able to show an element of fraud in the process of procuring a tainted visa or permanent residence permit and you are aware of it then you would be well advised not to challenge your right of entry.

Whilst the matter is in progress in court you would be expected to remain in a detention facility at the airport until the matter is finalised.

We would note that if the visa or right of entry is objectively valid even if there is some question to be clarified, in many cases the immigration officer fails to follow procedures and respect substantive rights, which would render the refusal of entry unlawful and thus grant the right to enter South Africa.