Introduction to Legal Principles

South Africa’s immigration laws are rooted in the principle of national sovereignty, allowing the government to determine who may enter the country. The Immigration Act 13 of 2002, as amended by the Immigration Amendment Act 19 of 2004, sets out the conditions under which foreign nationals may enter South Africa. A key feature of the legislation is the distinction between visa requirements and the actual right to enter the country, as well as the discretionary powers of immigration officials at the port of entry.

Visa Regulations and Entry Requirements

• Under the original Act, a foreign national required a visa issued by the Department of Home Affairs to visit South Africa.
• Certain foreign nationals from prescribed countries were exempt from visa requirements, as listed in Schedule C of the regulations.
• The 2004 Amendment Act repealed Schedule C, granting the Department of Home Affairs greater flexibility in determining visa exemptions.
• However, having a visa or being from a visa-exempt country does not guarantee entry; it merely allows the traveller to present themselves for inspection by an immigration officer.

Disadvantages of the Amendment

• Reduced transparency: The list of visa-exempt countries is no longer formally published, making it difficult for attorneys or travellers to ascertain requirements in advance.
• Discretionary power: Immigration officers retain significant discretion in granting or denying entry at the border.
• Airlines’ responsibility: Carriers face penalties if they transport inadmissible passengers, incentivizing strict pre-boarding checks.

Exclusion from Entry and the ‘V-List’

One common reason for refusal of entry is being placed on the ‘V-List’—a secretive list of individuals who are barred from entering the country.

Legal Framework for Exclusion

• A person may be refused entry if they are classified as a ‘prohibited person’ (Section 29) or ‘undesirable person’ (Section 30) under the Act.
• Inclusion on the ‘V-List’ can occur without the affected person being notified in advance.
• This practice raises concerns about legality, fairness, and transparency.

Appeal and Remedies for Refusal of Entry

Individuals denied entry have limited options for recourse:

• Appeal to the Minister: The affected traveller must submit an appeal “without delay.” However, if no response is received before the person’s departing flight, they must leave South Africa and await the outcome from abroad.
• Application to Remove Undesirable/Prohibited Status: The traveller can apply to the Minister or Director-General to overturn their classification by demonstrating “good cause.”
• Removal from the ‘V-List’: A separate process allows individuals to request their removal from the list, particularly if they were listed due to erroneous or outdated information.
• High Court Review: Urgent High Court intervention may be required in cases where immediate relief is necessary.

Relevant Case Law: Eveleth v Minister of Home Affairs

• Facts: The applicant, Eveleth, was declared a prohibited person under the previous Aliens Control Act of 1991.
• Court’s Decision: The High Court ruled that the definition of a ‘prohibited person’ had changed under the Immigration Act of 2002. This had consequences for individuals previously declared prohibited under the old Act, leading to a reconsideration of their status.
• Impact: The judgment highlights the importance of scrutinizing the Department’s reasons and paperwork in such cases.

Conclusion

While South Africa’s immigration laws uphold national sovereignty, the discretionary powers granted to immigration officials and the lack of transparency in visa exemptions pose significant challenges. The ‘V-List’ and other administrative exclusions raise concerns about fairness and access to legal remedies. Travellers and their legal representatives must navigate a complex system where even a valid visa does not guarantee entry.