Circumstances

There may be a number of reasons for a foreign person to have overstayed in South Africa, whether awaiting an existing visa or through unforeseen delays, as a result of an illness or accident, but where such foreign person is required to depart the country.

When such foreign person who has overstayed seeks to depart South Africa he or she will be subjected to being declared undesirable and a ban will be imposed of one year for a thirty days overstay or five years for an overstay in excess of thirty days.

What is most unfortunate is that the Department will seek to ban any foreign person who has overstayed no matter whether the overstay is through no fault or whether it was a mere day overstay.

The fact remains that the Department will declare all foreigners undesirable in the event of an overstay in terms of section 30(1)(h) and 50 of the Act.

The foreign person will then be issued a Form 19 declaring him or her an undesirable person and will be asked to sign the Form 19 and retain it as it serves as evidence of the ban.

Our Proposal

Smiedt & Associates is highly skilled in the lifting of bans and removing the declaration of undesirability in the shortest possible time frame.

We are often called on before the foreign person who has overstayed has even departed and we can then provide advice in dealing with the ban that will be imposed. Alternatively, we are contacted when such foreign person is already abroad.

There are two material matters in any lifting of the ban:

• Firstly, what is important is to firstly assess the basis of the ban and whether the merits are favourable or not and we will need to appreciate the factual matrix that led to the overstay. There can be factors that will support the lifting of the ban like family links in South Africa, a home in South Africa or short duration of the overstay.
• Second, is the matter of how quickly we can lift the ban and that depends again on the circumstances as we will approach the courts to lift the ban and depending on the facts we can approach the courts on an urgent basis and finalise the lifting of the ban in a matter of weeks.

We will call on the following paperwork once we are contacted:

• Identity page of Passport
• Entry and departure stamps in Passport
• Visa
• The signed Form 19 document giving effect to the declaration of undesirability
• Instructions on what led to the departure and overstay
• Other positive mitigating factors that led to the overstay like evidence of family members in South Africa, property ownership in South Africa, medical reports and the like

Smiedt & Associates would then be in a position to resolve the ban and fully assess the merits of the case. This will also allow us to approach the courts for an order to finalise the ban.

It is imperative that an electronic internal appeal is urgently submitted to the Department in terms of section 30(2) of the Act. There is a designated email address to which we forward such appeal.

We will then prepare and submit the appeal as a matter of urgency and from there prepare court papers to compel the finalization of the pending appeal against the ban.

We would recommend a dual challenge in lifting the bans:

• Urgently construct and forward a well-crafted appeal challenging the ban giving the Department five to seven days to finalise;
• If the appeal remains pending beyond thirty days or the matter is urgent on the facts we would proceed with possible court action to finalise the decision on the ban.

Matters such as this are best left to experts in the field of technical immigration litigation and we would be happy to step in and assist those in need.