Visas and entry into South Africa
Chris Watters
In what is the basic confirmation of the principle of national sovereignty and that the Government has the right to determine who may and may not be admitted to the Republic, section 11(1)(a) of the Immigration Act, 13 of 2002, and prior to the amendment on 1 July 2005, provided that the Department of Home Affairs could authorize a foreign national to visit South Africa by issuing to him or her a visa for that purpose. Section 11(1)(b) provided further that the citizens of such states as were prescribed from time to time, would however be exempt from needing a visa to travel to South Africa. That list of states appeared in Schedule C to the regulations to the Act.
With the introduction of the Immigration Amendment Act, 19 of 2004, both the previous regulations and Schedule C were repealed. Section 11(1) was replaced by section 10A. One of the consequences of this change was to remove the requirement that the Minister of Home Affairs needed to prescribe the list of exempted countries. This obviously allows the Department a measure of flexibility and speed to change that list in order to accommodate changing circumstances in both the security and foreign affairs fields, in particular.
An evident disadvantage of the amendment is that administrative convenience has evidently outweighed the transparency principle and the public’s right to know or even just an attorney’s ability to respond promptly to an inquiry as to whether or not a person needs a visa or not.
However, even assuming such lists were actually published for the convenience of the legal profession or the travel industry, this is not definitive of the passport holder’s right of entry into the country. Section 10A(3)(b) does usefully clarify the purpose or object of a visa, which is often misunderstood. It is merely permission to travel to the Republic and to report to immigration at the port of entry. A person who is from a ‘visa-exempt’ country is simply excused from needing that permission but still needs to stand in the queues to ‘request’ and be granted permission by an immigration officer to enter the country. One of the reasons why airlines or other carriers check travellers’ passports before the passengers are boarded is because if the carrier lands and presents someone to immigration who is ‘inadmissible’ for one or other reason, they will be fined by Home Affairs [currently R5000,00 per inadmissible passenger albeit the fine is of dubious legality] and will have to take that person back to the country where he or she boarded the plane.
However, having a visa that states the holder is travelling to the country to take up employment, for example, is no guarantee that he or she will be allowed to enter.
A not-infrequent reason for refusing someone entry at a port of entry is that the passport holder has been ‘V-Listed’. This is another device of dubious legality used by the Department that has been carried over from pre-Immigration Act practices. It is literally a list that takes on a life and questionable legality of its own, courtesy of the Department. The list is made up of the names of persons who for one reason or another are to be refused entry to the Republic. Section 10(4) of the amended Act provides that a temporary residence permit is issued on condition that the holder is not or does not become a prohibited or undesirable person. And so, if the passport holder has previously been declared to be prohibited [as defined in section 29 of the Act] or undesirable [as defined in section 30 of the Act], his or her name will appear on the ‘V-List’. Unlike the provisions of the Aliens Control Act, 1991, it is quite possible for someone to be ‘prohibited’ or ‘undesirable’, without knowing that he or she ‘enjoys’ that status.
When a person is turned back at a port of entry he or she is not without a remedy. This right of recourse is extremely limited. Section 8 provides that where this occurs, the affected person has the right to a single appeal but he or she must submit such appeal “without delay” to the Minister. The Act gives a clear indication as to what is meant by the term “without delay”: if the Minister has not responded by the time your plane or ship leaves again you are to be on that conveyance and you will await the outcome of the appeal from outside the country [section 8(2)(a)]. One can only speculate at whether the affected person has here been given an effective remedy given that it is not unknown for the Ministry to take months to simply acknowledge urgent correspondence. In what would appear to serve little rational purpose and unlike most other decisions of the Department, there is no requirement in the Act that the affected person has to be given the reasons for that expulsion decision [section 8(3)] – although the person must presumably retain his or her rights in terms of PAJA – and it is the only appeal available to the excluded person.
The other remedies available to the unfortunate would-be traveler is to have his or her status as being ‘undesirable’ or ‘prohibited’ undone – which can be achieved upon application to the Minister or Director-General respectively. In each case, the traveler has to demonstrate “good cause”. As this will first require that the Department provide the traveler – or his or her attorney – with proper reasons for having acquired that status and the information upon which this is based, more often than not the traveler will have to abandon plans for visiting the Republic in the near future unless there are grounds for urgent High Court relief.
A related remedy is that one can apply to the Department to be removed from the ‘V-List’ itself. This is important as, in this ‘post-9/11’ age, it appears that persons can now be ‘V-listed’ at the request of foreign or international police agencies and it is not unknown for those bodies to err.
A final option may emanate from the reasons and information provided by the Department. The transition and savings’ provisions of the Immigration Act saved only those temporary- and permanent permits that had been issued under the previous Act as well as “anything done” under the previous Act which could be done under the new Act. As was confirmed in the recent judgment in Eveleth v Minister of Home Affairs [2004] 3 All SA 322 (T), the definition of a ‘prohibited person’ had changed in critical respects which had consequences for persons who had been declared to be prohibited for certain specified reasons in terms of the Aliens Control Act, 1991. A thorough scrutiny of the Department’s reasons and paperwork will therefore be of paramount importance in these instances.
