April 25, 2014

The South African Department of Home Affairs (DHA) recently announced that foreign nationals whose Temporary Residence Permits expire while their renewal applications are still in process must remain in South Africa until the application is adjudicated. For some years now, foreign nationals in this “implied legal status” situation were able to freely depart and re-enter South Africa by presenting the official filing receipt to the border officers. However, with the recent repeal of Immigration Directive No. 43 of 2010, this is no longer possible.

It is important to note that departing South Africa under these circumstances will not only affect the foreign national’s residence authorization in the country (more details below), but that upon re-entry, the employee must possess valid work authorization before continuing work activities. In addition, the DHA has confirmed that administrative fines of up to ZAR 3,000 may be assessed upon departure OR re-entry.

Next Steps for Foreign Nationals with Implied Legal Status in South Africa

The DHA has implemented a grace period dependent on when the foreign national departed South Africa: Foreign nationals in this situation who departed before February 24, 2014, may re-enter the country before April 30, 2014 with their passport, expired permit, and official filing receipt with no consequences.

Effective immediately, however, foreign nationals who do depart from South Africa without a valid Residence Permit and while their renewal applications remain in process will be required to obtain Visitors Permits at a South African Consulate General abroad and pay administrative fines of up to ZAR 3,000 in order to re-enter the country. Visitors Permits do not allow for work in South Africa; as mentioned above, the employee must wait for his/her work authorization to be renewed before continuing work activities.

Finally, foreign nationals who depart South Africa with a valid Residence Permit and a renewal application in progress, but who will return after their Temporary Residence Permit has expired, will still be required to obtain a Visitors Permit (without work authorization), but will not face the Administrative fines.

Pro-Link GLOBAL continues to monitor this development, as well as the finalization and implementation of the much-awaiting immigration reform.