Despite the most recent directive issued by the Department of Home Affairs on the 26th of March, 2020 on the COVID-19 pandemic; many questions around practicality remain unanswered.

Our objective has been to reach out and get clarity on the following questions:

  • Are foreigners on expired visa allowed to leave without being declared undesirable?
  • Can employees continue working while their current work visa is expired?
  • And, are the visas of foreigners outside South Africa still valid?

Through various channels, we have been able to gain the following insights:

Situation A: In South Africa and visa has expired after 15 February 2020

Foreigners who are currently in South Africa and whose visas have expired after the middle of February, or are going to expire during the lockdown period, have two options:

  1. They can extend their visa at the local VFS offices. Currently VFS is still closed, but VFS has opened their online booking system from the 4th of May onward. Such foreigners can re-apply for the same visa and do not require the, usually for illegals, required form 20. They cannot change their visa and must meet all usual requirements of their expired visa.
  2. They can leave South Africa after the lockdown period and will not be declared undesirable. There will be no penalty for overstaying and becoming illegal. At the moment we do not know for how long such foreigners will be allowed to leave without being declared undesirable, but we expect for at least 3 months after the lockdown has ended.

Situation B: Foreigner is holder of an expired work, business or study visa

If you are a foreigner who is the holder of a business, any work or study visa and such visa has expired during the lockdown, and you have applied for an extension already but you have not received the outcome yet, then you are allowed to continue to work, study or conduct your business.

This is an important deviation from the normal legal situation. Pending applications usually to not allow the applicant to work, study or conduct his or her business.
Please be aware that this exception is only applicable to those who have already submitted their application for an extension and your old visa must have expired during lockdown, thus after the 26th of March and not after the 15th of February.

Situation C: Holders of any temporary visa who are currently outside South Africa
Passport holders of high-risk countries (currently the following countries: Italy, Iran, South Korea, Spain, Germany, UK, USA) who were issued with, for instance a spousal, retired, volunteer or work visa and who are currently outside South Africa will have lost their visa!

All visas to nationals of such high-risk countries have been revoked. This is not only applicable for issued but also not-activated visas (i.e. the holder had  not yet travelled to SA), but also for such foreigners who were already working in South Africa for months or years, left South Africa before the lockdown and are now stuck overseas. Even holders of a retirement visa might have to apply for a new visa despite the fact that their old ones were still valid for up to 4 years.

At this stage it is not clear what DHA will do for these foreigners. Fact is that their visas are revoked. This would mean that they would have to re-apply for their visa, meaning to collect and submit a comprehensive new application including all police clearances and other documents.
However, DHA might re-issue such a visa requiring, for instance, only a medical certificate and not a complete new application. At this stage it is not clear which route our administration will take. Therefore, we think it is premature to advise the preparation of a new application.

We are engaging with DHA in the hope that they will make it as easy as possible for such foreigners to return to South Africa.

For our corporate clients in particular, situation B and C are of importance. We will engage our administration on the negative consequences in order to find a path to mitigate possible hardship.

We commit to keeping you updated, as and when the regulations are changed or adjusted. Please ensure that you visit our blog frequently for updates, as well as follow us on Facebook and LinkedIn.

We are fully operational during the lockdown period and are available for your questions. Contact us today with your questions and queries and we will be able to advise on the best possible solution for you and your employees.

 

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By Andreas Krensel