Uncertainty still looms about whether the concession for foreign nationals will be extended beyond 31 December 2024 to safeguard them from being erroneously declared undesirable while they await their visa application outcomes, but the good news is those affected can still travel abroad to visit loved ones this Festive Season and re-enter South Africa legally in the new year.

This will require some planning ahead for multinationals and corporates to ensure their foreign national employees and their families can have peace of mind when travelling abroad while their visa applications are pending, says Marisa Jacobs, Managing Director at Xpatweb, South Africa’s premium work permit and immigration service provider.

The temporary concession granted by the Minister of Home Affairs in July due to the visa backlog at his Department, applies to temporary residence visa applications submitted in South Africa before 30 June 2024.

Jacobs explains the concession gives foreign nationals who have been legally admitted into South Africa and have timeously submitted the renewal of their temporary residence visas, the freedom to exit and re-enter the country without adverse consequences where visas have since expired. If a foreign employee needs to be mobile, they may leave South Africa before 31 December 2024 and re-enter after 1 January 2025 as a visitor.

Should a foreign employee decide not to travel outside of South Africa and the concession is not extended further, that individual will be stuck in South Africa for as long as visa outcome is outstanding. The person will still be in South Africa legally (as they are awaiting their application to be processed by the DHA) but will not be able to cross the border. Even if there was no concession, foreigners are legally allowed to stay in the country and wait for their visa application to be processed.

Since June, Minister Leon Schreiber reiterated on several occasions that the DHA, in collaboration with the private sector, is working around the clock to clear the backlog by Christmas. The dedicated team is making significant progress and could very well be on track to realise this target.

By mid-November they have completed 80% of the backlog “and working hard on clearing the rest”, the Minister’s office said in update to Xpatweb this past week (19 November 2024) prior to its webinar on important immigration developments during 2024.

While the current concession gives protection until year-end, the question begs whether affected foreign nationals in South Africa will be left in the lurch should the backlog not be cleared by then.

Jacobs stresses that anyone still awaiting the outcome of an application submitted before 30 June 2024, can remain in South Africa legally. 

Even if the concession is not extended and your visa has expired, you will be able to depart from South African before 31 December, and re-enter after 1 January 2025. 

However, for travelling, it is essential to have a travel pack to present to border control officials, containing:

• your original VFS receipt; 
• a copy of the concession granted by the Minister on 5 July 2024 (available on the DHA website); and
• a letter that Xpatweb provides to its clients explaining how the concession is applicable to the traveller’s matter personally. This is important as not all border officials are from Home Affairs and may not be familiar with VFS receipts and details of the concession.

Foreign nationals must note that a visa-exempt country - such as Zambia, Kenya, France, UK, Germany, Eswatini, or Mauritius - or a non-exempt destination like Nigeria, India or China, plays a role in the departure and re-entry.

It is easier for visa-exempt countries, as foreigners can leave South Africa for a holiday and simply re-enter on visa-exempt status, with a stamp at the border. 

For nationals from non-exempt countries, one first has to apply for and be granted a visitor visa to re-enter South Africa to await processing of your visa application here. This can be an administrative burden as these applications must be submitted in the foreigner national’s home country or via the DHA eVisa platform. 

Jacobs says the progress with processing visa applications and digitization at DHA is among several positive developments in the immigration landscape the past year. It also ties in with Minister Schreiber’s vision to position DHA as a vital economic enabler. The Minister has demonstrated through word and action he understands the role of the Department in enhancing economic growth and its role in attracting foreign talent through a reformed visa regime. 

Processing applications at this speed and pressure on the department to get it done as quickly as possible, however unfortunately comes with a cost to the quality of the review of applications, says Jacobs. It is not so much about the rejections itself - although the ratio of rejections to applications seems to be rising - but about some poor-quality rejections for frivolous reasons or so called ‘copy-and-paste’ rejections. 

What if your application is rejected

In case of a rejection, an applicant can appeal the decision or submit a new application, but where there are long delays with adverse effects, escalation through legal action may become a viable option.

Appealing the decision must be done within 10 days of receiving the rejection. The applicant asks DHA to reconsider its decision. Note that the applicant must demonstrate the DHA made an incorrect decision when adjudicating the application.

When it comes to a new application, that can only be submitted in South Africa while you are still in possession of a valid visa. Once expired, which is indeed the case for many applicants given the backlog, any new application must be submitted in the applicant’s home country. For this, the applicant must exit South Africa within 10 days of receiving the adverse outcome.

Legal action becomes attractive in cases where an applicant has been waiting for a long time for the visa to be processed. This could be 8 months for a Permanent Resident Visa, or 8 weeks for a work visa, Jacobs advises. One can also follow the legal route in cases of poor-quality decisions by DHA after all internal remedies have been exhausted.

Legal action entails three steps:

• A full review of the original application to confirm the merits of success; 
• Formal escalation (in writing) with the DHA to finalise the application; and
• Finally approaching the High Court to intervene and order the DHA to issue or finalise the pending application within a specified time frame, usually 5, 10 or 30 days depending on the urgency.

In many instances, the cost to an organization not having the visa, outweighs the costs of going to court, says Jacobs.

In recent litigation which Xpatweb handled on behalf of an applicant, the High Court in Pretoria came to the rescue of a foreign professional in South Africa who waited more than a year for his Critical Skills Work visa to be issued. After his initial application was rejected, the DHA dragged its feet in making a decision on his appeal. 

The Court ordered the Minister of Home Affairs and the DHA to issue the Critical Skills Visa forthwith. It further ordered VFS, who work with the DHA to facilitate visa and permit applications, to ensure the visa be communicated to the applicant “promptly and without any delay”. This order was significant as the usual outcome is an order to DHA to finalise the application within a specified timeframe. Instead, DHA was ordered to issue the visa directly taken the merit of the case and the delay caused in making a decision.

Submitted by Xpatweb