What does the South African Immigration Act 13 of 2002 do?

What is the Act for?

The Immigration Act 13 of 2002 regulates lawful admission into and out of South Africa. It repealed the Aliens Control Amendment Act 76 of 1995. From then onwards, it was the main legislation controlling South Africa’s immigration system.

Its sections cover the

• Objectives and Structures of Immigration Control
• Admission and Departure
• Temporary Residence
• Permanent Residence
• Exclusions and Exemptions
• Enforcement and Monitoring
• Immigration Courts
• Duties and Obligations
• Offences
• Transitional Provisions

What are the objectives of immigration control set out by the Act?

According to Section 2 of the Act, the Department of Home Affairs should pursue a “human rights and civil rights” based culture in immigration control in protecting the borders of South Africa. The Act is also designed to “promote a climate of cooperation” between state departments and agencies and “preventing xenophobia” within the department and in any other departments of the state.

In so doing, the Act aims to promote “illegal foreigners” to depart voluntarily and to deter and punish those who cross borders illegally. Any migration to and from South Africa should be at ports of entry only. To this end, the Act confers powers to detect and detain people in the country illegally and also to deport them.

The Act is also generally concerned with promoting migration into South Africa to promote economic growth and focuses on enabling businesses and industries to have access to foreign workers and “increasing skilled human resources” in the country. Further, it aims to facilitate investments from overseas.

Gaining permission to enter South Africa

Under Section 9 of the Act, under Admission and Departure, no one can leave the country unless in possession of a valid passport or a certificate issued by the Department of Home Affairs. A foreign national can only enter South Africa if they present to an immigration official with a passport valid for at least 30 days after the intended length of stay. Otherwise, they must have a temporary residence permit and abide by the specific regulations set out in each one.

For foreign national who does not have permanent residence in South Africa to enter the country, they must be issued with one of thirteen types of temporary permits. Each one has a different range of requirements the individual must meet.

Once you hold a temporary permit, you can apply for permanent residence. You must have been in the country for five years and normally requires gaining permanent employment or a relationship with a citizen or other permanent resident.

How do I know if I need to apply for a permit to enter South Africa?

Requirements differ depending on the country you are travelling from. If you are a UK citizen travelling to South Africa for tourism or business only, for example, you will not need to apply for a visa if your stay is for 90 days or less.

Currently, citizens of 48 countries can enter South Africa for the 90-day stay and 28 nationalities can enjoy stays of up to one month without needing to apply for a visa – again for tourism or business purposes.

It is always highly recommended that you make enquiries with a South African consulate or embassy before making any applications to see whether you are required to apply for a visa. If you do, you must not travel without a visa.

What are the types of temporary permit?

The Act sets out the thirteen types of temporary permits available to foreign nationals. Generally, each category confers the rights each permit gives to the holder, who can give the permit, and the eligibility requirements the person must meet. Each section also advises what activities the permit holder is allowed to undertake, for example, if and where they can work or study.

Types of temporary permit are as follows:

• Visitors permit – visiting family and friends and tourism
• Study permit
• Treaty permit
• Business permit
• Crew permit
• Medical treatment permit – for a patient to receive treatment for up to three onths
• Relatives permit
• Work permit
• Retired persons permit
• Corporate permit
• Exchange permit
• Asylum transit permit and
• Cross-border and transit permit

If you are granted a temporary visa, you are allowed to visit and stay in the country for up to 90 days. The granting of the visa by the Department of Home Affairs shows you are eligible to enter for a specific purpose and you must enter via a proper port of entry, like an airport or ferry port.

Applying for a Permanent residence permit

The Act also covers rules for applying for Permanent Residency in South Africa. The various options that enable an individual to apply:

• Spouses of South African Citizens or Permanent Residents in SA who have been together for 5 years;
• Holder of work visa for 5 years (strictly section 19 Work Visas and excluding that of a Corporate Worker visa);
• Children of South African Citizens or Permanent Residents;
• Parents of South African Citizens or Permanent Residents;
• Applicants who received a permanent offer of employment under the condition that the applicant will remain employed in the field for a period of 5 years and submits an original advert, confirmation from DOL and falls within yearly limits (the list is not published yet);
• Critical Skills applicant who can show proof of post-qualification experience of 5 years, testimonials from previous employers, a CV and a letter of motivation;
• Business Visa applicants (own business); and
• Retired applicants depending on financial eligibility rules (financial values also yet to be published