As the national lockdown continues, the government is easing restrictions so that certain sectors of the economy and certain state offices can reopen and people can move more freely.

Among the government offices that remain closed are the Department of Home Affairs’ (DHA) Visa Facilitation Services and the Refugee Reception Offices which serve foreign nationals in South Africa. The closure of these offices had legal repercussions for the status of this particular group of people. In fact, those whose visas or permits expired during the lockdown were not able to renew them and thus ran the risk of becoming “overstayers”.

In principle, foreign nationals (except recognised refugees) with expired visas or permits usually become “overstayers” and are thus declared “illegal foreigners”. As illegal foreigners, they are further declared “undesirable people” in terms of section 30(1)(h) of the Immigration Act 13 of 2002, as amended by Act 13 of 2011. Undesirable people must leave South Africa and are banned from coming back.

Asylum-seekers can also be declared “undesirable people”. The Refugees Act 130 of 1998 provides the manner in which they can be declared “illegal foreigners”. Once declared illegal foreigners, they become “undesirable people” to be treated in terms of immigration law.  Declaration of illegality of their stay can therefore arise from, among other things, non-renewal of their permits.  

Prior to the amendment of the Refugees Act in 2017, the non-renewal of an asylum-seeker permit was “deemed to be abandoned” if the permit was not renewed within 90 days after it had expired. The 2017 Refugees Amendment Act reduced the period of 90 days to one month. The amendment of section 22 of the Refugees Act further restricts valid reasons of non-renewal to hospitalisation or any other form of institutionalisation or any other compelling reason. If an asylum-seeker has not renewed his or her expired permit within one month after its expiry, he or she will be declared an “illegal foreigner”.

With regard to recognised refugees, Regulation 17 of the 2018 Regulations to the Refugees Act imposes an obligation on them to apply for renewal of their refugee status permit, at least 90 days prior to the expiry thereof. In principle, the refugee status permit was initially valid for a period of two years, and was later extended to a period of four years. However, thousands of recognised refugees are, for reasons known by the DHA, in possession of the refugee status permit that is valid only for a period of six months. This injustice, meted out to all those individuals who have been in the country as formally recognised refugees for more than five years, threatens their livelihood.   

Nonetheless, recognised refugees appear to enjoy more legal protection compared to asylum-seekers and other migrants. While asylum-seekers who are considered to have abandoned their application for asylum are declared and dealt with as “illegal foreigners” in terms of section 32 of the Immigration Act, nothing in law or policy indicated the same consequences should befall recognised refugees who did not regularise their stay on time.

The rationale behind this is due to the non-refoulement principle which holds that refugees cannot be deported or returned to a place where their life, physical safety or freedom would be threatened. This principle, however, applies to genuine asylum-seekers as the genuineness implies that they are indeed bona fide refugees.

Of concern is the issue of foreign nationals becoming undesirable persons during the lockdown, owing to the unlawfulness of stay, stemming from the expiry of their visas or permits.

Unlawfulness of stay is no fault of their own. It is because of a situation beyond their control. Nonetheless, foreign nationals face marginalisation or victimisation based on non-renewal of their documents. This is in contrast with ministerial directives and assurances.

On 25 March, two days before the lockdown, Home Affairs Minister Dr Aaron Motsoaledi made it clear that no foreign nationals would be penalised if their visas or permits expired during the lockdown period, as offices would be closed in compliance with lockdown regulations. A ministerial directive in this regard issued on 26 March has shortcomings of not covering all those whose permits or visas were expired during the lockdown. Deputy Minister Njabulo Nzuza later addressed these shortcomings in a radio interview on  22 May.

The ministerial directive and statements were aimed at providing assurances that no foreign nationals – whose visa or permit has expired – would be regarded as being in the country illegally, and thus not be penalised with arrest, detention and deportation or be declared undesirable.

It appears that the lockdown is being used as a tool to victimise and marginalise foreign nationals through the declaration of illegality of their stay. Because of this, they may be arrested and deported, and consequently be banned from returning to South Africa or visiting another country in the near future.

Ministerial directives and statements that preceded the ministerial directive published in the Government Gazette of 10 June appeared to lack the force of law. Initially, this was evidenced by the fact that migrants, refugees and asylum-seekers could not receive banking services because of expired documents. Their accounts were frozen and those who lost their ATM cards could not be issued with new ones. This caused myriad anxieties and economic stress in this difficult time.

Expired documents were some of the reasons why foreign nationals were arrested and detained during the lockdown and why foreign employees and employers could not have access to the temporary employee-employer scheme relief.

The absence of force of law became more evident when the country moved to Level 4 of lockdown. Certain economic activities were reopening and migrants were allowed to repatriate as from 6 May. Travelling with expired visas, those who wished to repatriate from South Africa were declared by immigration officers at border posts as “undesirable people” in terms of Section 30(i)(h) of the Immigration Act. The declaration was based on the ground that foreign nationals had overstayed their time in South Africa by more than 30 days.

Undesirability has negative impacts for foreign nationals. It is usually accompanied by a five-year ban on re-entry into South Africa and makes future travel to other countries impossible. Regarding the latter, undesirability results in the refusal of visas to visit another country.

The declaration of undesirability was contrary to the ministerial directives and assurances that foreign nationals whose visas or permits expired from mid-February 2020 and who did not renew their visas or permits before or during the lockdown would not be declared illegal foreigners.

It appears that the lockdown is being used as a tool to victimise and marginalise foreign nationals through the declaration of illegality of their stay. Because of this, they may be arrested and deported, and consequently be banned from returning to South Africa or visiting another country in the near future.

For justice to ensue, state officials and service providers must adhere to the ministerial directives and desist from penalising and punishing migrants, refugees and asylum-seekers on the ground of their expired documents. The lockdown period is in itself a compelling reason to justify that being in this precarious situation is through no fault of their own. Accordingly, the DHA should reverse its decision of declaring those who were travelling with expired documents as undesirable people. DM