Immigration Amendment Act

Link to law: http://www.gov.za/documents/immigration-amendment-act-1
Published: 2011-08-26

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Immigration Amendment Act 13 of 2011


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 554 Cape Town 26 August 2011 No. 34561
STATE PRESIDENT'S OFFICE No. 690 26 August 2011
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 13of 2011: Immigration Amandment Act, 2011.

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Act No. 13 of 2011 IMMIGRATION AMENDMENT ACT, 2011
GENERAL EXPLANATORY NOTE:
Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President) (Assented to 21 August 2011)
ACT To amend the Immigration Act, 2002, so as to substitute certain words of the Preamble to the Act; to delete, insert or substitute certain definitions; to revise provisions relating to the Immigration Advisory Board; to revise provisions relating to the making of regulations; to provide for the designation of ports of entry; to revise provisions relating to visas for temporary sojourn in the Republic and for the procedures with regard thereto; to provide for the mandatory transmission and use of information on advance passenger processing; to provide for the transmission of passenger name record information; to revise provisions relating to permanent residence; to revise penal provisions; to correct certain important technical aspects in the text of the Act; and to provide for matters connected therewith,
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment of Preamble to Act 13 of 2002, as substituted by section 1 of Act 19 of 2004
I. The Preamble to the Immigration Act. 2002 (Act No. 13 of 2002) (hereinallcr 5 referred to as the principal Act), is hereby amended hy the substitution for paragraphs (a) and (c) of the J{>llowing paragraphs respectively:
'·(a) (temporary] visas and permanent residence pcm1its arc issued as expedi- tiously as possible and on the basis of simplified procedures and objective, predictable and reasonable requirements and criteria, and without consuming 10 excessive administrative capacity;
(c) interdepartmental coordination and public consultations enrich the (func- tions( manag~m~nt of immigration (control]:'·.
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Act No. 13 of 2011 IMMIGRATION AMENDMENT ACT, 2011
Amendment of section I of Act l3 of 2002, as amended by section 2 of Act 19 of2004 and section I of Act 3 of 2007
2. Section I of the principal Act is hereby amended- ( a) by the insertion in subsection (I) after the definition of "admission'' of the
following definition: 5 " "advance passenger processing' means the pre-clearance of persons. in the prescribed manner, prior to boarding conveyances by means of a boarding advice issued to owners or persons in charge of conveyances;";
(b) by the substitution in subsection (I) for the definition of "corporate applicant" of the following definition: 10
•· 'corporate applicant' means a juristic person established under the laws of the Republic for of a foreign country which conducts business, not-for-gain, agricultural or commercial activities within the Repub- lic and) \Vhich applies for a corporate [permit) visa referred to in section 21;"; 15
(c) by the deletion in subsection (I) of the definition of"customary union"; (d) by the substitution in subsection (I) for the definition of "immigration
officer'' of the following definition: •· 'immigration officer' means an officer appointed lin terms of section 331 by the Director-General to perform the functions of either the 20 permitting office. port of entry or inspectorate as contemplated in this Act;'';
(e) by the substitution in subsection (I) lor the definition of ''marriage" of the following definition:
" 'marriage' means- 25 (a) a marriage concluded in tem1s of
ill the Marriage Act, 1961 (Act No. 25 of 1961 ); or (ii) the Recognition of Customary Marriages Act, 1998 (Act No.
120 of 1998); Iori (b) Ia legal marriage under the laws of a foreign country] a civil 30
union concluded in tenns of the Civil Union Act, 2006 (Act No.T7 of2006); or
(c) a marriage concluded in terms of the lm\'S of a foreign country;''; (f) by the insertion in subsection (1) after the definition of '"owner'' of the
following definition: 35 '· 'passenger name record' means the record of the data of a person as contemplated in section 35(3)faJ created by the owner or person in charge of a conveyance or his or her authorised agents for each journey booked by or on behalf or any person;";
(gl by the substitution in subsection (I) lor the definition of "passport'' of the 40 following definition:
., 'passport' means any passport or travel document containing the prescribed infOrmation and characteristics issued- ( a) under the South African Passports and Travel Documents Act. 1994
(Act No.4 of 1994); 45 (bj on behalf of a foreign state recognised by the Government of the
Republic to a person \vho is not a South African citizen; (c) on behalf of any international organisation as prescribed. including
regional or sub-regional organisations, to a person who is not a South Affican citizen; or 50
any other document approved by the Minister and issued under special circumstances to a person who cannot obtain a document contemplated in paragraphs (a) to (c);'';
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Act No. 13 of2011 IMMIGRATION AMENDMENT ACT, 20 II
(h) by the substitution in subsection (1) for the definition of "port of entry" ofthe following definition:
" 'port of entry' means a place designated as such by the Minister (where all persons have to report before they may enter, sojourn or remain within, or departfrom the Republic] in terms of section 9A;"; 5
(i) by the insertion after the definition of "port of entry" of the following definition:
'' 'port of entry visa' means the authority to travel from a port of entry of another country to any port of entry of the Republic for the purposes of admission into the Republic, as contemplated in section I OA;"; I 0
(i) by the deletion of the definition of''Republic"; (k) by the substitution in subsection (I) in the definition of "spouse" for
paragraph (a) of the following paragraph: "(a) a marriage[, or a customary union] as defined in this Act; or;";
(/) by the substitution in subsection (I) for the definition of "status" of the 15 following definition:
" 'status' means the status of the person as detem1incd by the relevant visa or permanent (or temporary) residence permit granted to a person in terms of this Act;";
(m) by the deletion of the definition of "temporary residence pe1mit"; and 20 (n) by the substitution in subsection (I) for the definition of "visa'' of the
following definition: ·• 'visa' means the authority to temporarily sojourn in the Republic for purposes ot:- (a) transit through the Republic as contemplated in section I OR; 25 (b) a visit as contemplated in section 1 L (c) study as contemplated in section 13; (d) conducting activities in the Republic in tcm1s of an international
agreement to which the Republic is a party as contemplated in section 14; 30
(e) establishing or investing in a business as contemplated in section 15:
(f) working as a crew member of a conveyance in the Republic as contemplated in section 16:
(g) obtaining medical treatment as contemplated in section 17: 35 lh! staying with a relative as contemplated in section 18; {i) working as contemplated in section 19 or 21; (J) retirement as contemplated in section 20; (k) an exchange programme as contemplated in section 22; or 1/J applying for asylum as contemplated in section 23, 40 whichever is applicable in the circumstances;".
Amendment of section 4 of Act 13 of200Z, as amended by section 5 of Act 19 of2004
3, Section 4 of the principal Act is hereby amended- fa) by the substitution ror subsection (2) of the follov..'ing subsection:
"(2) Ia! The Board shall consist of- 45 (i) (aa) the Director-General;
(bb) the Head of the Immigration Services Branch of the Depart- ment;
(ii) any representative, at least equivalent to the rank of Deputy Director-General. from any department or organ of state whom the 50 Minister considers relevant;
(iii) a person representing organised business; (iv) a person representing organised lahour; and
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(v) up to five individual persons appointed by the Minister in the prescribed manner on the basis of their knowledge, experience and involvement pertaining to immigration law, control, adjudication or enforcement.
(b) The Minister shall designate from the members of the Board a 5 Chairperson and Deputy Chairperson of the Board."; and
(b) by the substitution in subsection (4) for the words preceding paragraph (a) of the following words;
"A member of the Board referred to in subsection (2)(a) ](iv), (v) and (vi)] (iii), (iv) and (v) shall-''. 10
Amendment of section 7 of Act 13 of 2002, as substituted by section 8 of Act 19 of 2004
4. Section 7 of the principal Act is hereby amended- ( a) by the substitution in subsection (I) for paragraph (e) of the following
paragraph: 15 "(e) [the permits] a port of entry visa, visas, permanent residence
pem1its and the certificates which may be issued under this Act, the requirements for the issuing of !permits] a port of entry visa, visas, permanent residence pcnnits and certificates and JtheJ terms and conditions to which such ]permits] port of entry visa, visas, 20 permanent residence permits or certificates may be subjected, and the circumstances under which such (permits] a port of entry visa, visas. permanent residence penn its or certificates may be cancelled or withdrawn;";
(b) by the substitution in subsection (I) for paragraph (g) of the following 25 paragraph:
''(g) the forms of warrants. permanent residence permits, a poti of entry visa, visas, certificates or other documents to be issued or used, or of declarations to be made, or of registers to be kept, for the purposes of this Act, and the particulars to be provided on or inserted in any 30 such document. declaration or register;··;
(c) by the substitution in subsection (1) for paragraph (l) of the following paragraph:
·' (i) the fees that may be charged in respect of the application for and issuing of a port of entry visa, visas. permanent residence permits 35 and certificates and other services rendered in terms of this Act, including advance passenger processing and passenger name record infonnation transmission;";
(d) by the deletion in subsection (1) of paragraph (ki; (e) by the substitution in subsection (1) t(JT paragraph (n} of the following 40
paragraph: "(n) the circumstances \vhcreunder and the manner in \vhich a penalty
shall be incurred hy and recovered from the owner, agent, charterer or person in !control] charge of a conveyance and who conveyed a foreigner contemplated in section 35](7)1\2.) to the Republic:'': and 45
(fj by the substitution for subsection (2) of the following subsection: ''(2) Different regulations may be made under subsection (I )!c) in
respect of different ports of entry, and the forms of\\•arrants. pennancnt residence pern1its, a port of entry visa, visas, certificates, documents, declarations or registers prescribed under subsection ( 1 )fg) may differ in 50 respect of different categories of persons.".
Amendment of section 9 of Act 13 of2002, as substituted by section 10 of Act 19 of 2004
5. Section 9 of the principal Act is hereby amended- (aj by the substitution for subsection (3) of the following subsection: 55
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Act No.13 of lOll IMMIGRATION AMENDMENT ACT, 20 II
"(3) No person shall enter or depart tfom the Republic- (a) unless he or she is in possession of a valid passport, and in the case
of a minor~ has his or her own valid passport; (b) except at a port of entry, unless exempted in the prescribed manner
by the Minister, which exemption may be withdravm by the 5 Minister;
(c) unless the entry or departure is recorded by an immigration officer in the prescribed manner~ and
(d) unless his or her relevant admission documents have been examined in the prescribed manner and he or she has been interviewed in the I 0 prescribed manner by an immigration officer: Provided that, in the case of a child, such examination and interviev.r shall be conducted in the presence of the parent or relative or, if the minor is not accompanied by the parent or relative, any person of the same gender as the minor.''; and 15
(b) by the substitution for subsection (4) of the following subsection: "(4) A foreigner who is not the holder of a permanent residence permit
contemplated in section 25 may only enter the Republic as contemplated in this section if~ (a) his or her passport is valid for [not less than 30 days after the 20
expiry of the intended stay] a prescribed period; and (b) issued with a valid [temporary residence permit] visa, as set out in
this Act.".
Insertion of section 9A in Act 13 of2002
6. The following scclion is hereby inserted after section 9 of the principal Act: 25
"Place of entry or exit
9A. (I) The Minister may, in the prescribed manner, designate any place in the Republic, \Vhich complies wit t e prescribed requirements, \vhere all persons have to report before they may enter, sojourn or remain within, or depart from, the Republic. 30
(2) The Minister may, on good cause shown, withdraw the designation contemplated in subsection ( 1) at any time.";
Amendment of section I 0 of Act 13 of 2002, as substituted by section II of Act 19 of 2004 and section 2 of Act 3 of 2007
7. Section 10 of the principal Act is hereby amended- 35 (ai by the substitution tor the heading of the following heading:
"[Temporary residence permits} Visas to temporarily sojourn in Republic";
(bi by the substitution for subsection (I) of the following subsection: "(I) Upon admission, a foreigner, who is not a holder of a permanent 40
residence pcm1it, may enter and sojourn in the Republic only if in possession of a [temporary residence permit] visa issued by the Director-General for a prescribed period.''
(c) by the substitution for subsection (2) of the follO\\·ing subsection: (2) Subject to this Act, upon application in person and in the prescribed 45
manner [and on the prescribed form~ one of the temporar)' residence permits contemplated in sections 11 to 23 may be issued toJ, a foreigner may be issued one of the following visas for purposes of___:: (a) transit through the Republic as contemplated in section lOB; (bj a visit as contemplated in section 11; 50 (c) study as contemplated in section 13;
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Act No. 13 of2011 IMMIGRATION AMENDMENT ACT, 2011
(d) conducting activities in the Republic in terms of an international agreement to which the Republic is a party as contemplated in section 14;
(e) establishing or investing in a business as contemplated in section 15; 5
(f) working as a crew member of a conveyance in the Republic as contemplated in section 16;
(g) obtaining medical treatment as contemplated in section 17; (h) staying with a relative as contemplated in section 18; (i) working as contemplated in section 19 or 21; I 0 (j} retirement as contemplated in section 20; (k) an exchange programme as contemplated in section 22; or L!.L__applying for asylum as contemplated in section 23."; and
(d) by the substitution for subsection (6) of the following subsection: "(6) fE1. Subject to this Act, a foreigner, other than the holder of a 15
visitor's or medical treatment visa, may apply to the Director-General in the prescribed manner [and on the prescribed form[ to change his or her status or [the[ tem1s and conditions attached to his or her [temporary residence permit] visa, or both such status and tcnns and conditions, as the case may be, while in the Republic. 20
(h) An application for a change of status attached to a visitor's or medical treatment visa shall not be made by the visa holder while in the Republic. except in exceptional circumstances as prescribed.".
Amendment of section lOA of Act 13 of 2002, as inserted by section 12 of Act 19 of 2004 25
8, Section I OA ofthe principal Act is hereby amended- ( a} by the substitution for the heading of the following heading:
"[Visas[ Port of entry visa; (b) by the substitution for subsections ( 1) and (2) of the following subsections:
"(1) Any foreigner who enters the Republic shall, subject to 30 subsections (2) and (4), on demand produce a valid port of entry visa, granted under subsection (3), to an immigration officer.
(2) Any person who holds [a valid permit issued in terms of sections 13 to 22 and 25 to 27[-
(a) a valid visa tor purposes of'- 35 (i) study as contemplated in section 13;
(ii) conducting activiti~:s in the Republic in terms of an international agreement to \Vhich the Republic is a party as contemplated in section 14;
(iii) establishing or investing in a business as contemplated 40 in section 15;
(iv) working as a crev,r member of a conveyance in the Republic as contemplated in section 16;
(v) obtaining medical treatment as contemplated in section 17; 45
(vi) staying with a relative as contemplated in section 18; (vii) \Vorking as contemplated in section 19 or 21;
(viii) retirement as contemplated in section 20; (ix) an exchange programme as contemplated in section 22;
or 50 (x) applying for asylum as contemplated in section 23: or
(h) a pcnnancnt residence permit issued in terms of sections 25 to 27,
shall, upon his or her entry into the Republic and after having been issued \Vith that visa or permanent residence pennit, be deemed to he in 55 possession of a valid port of entry visa for the purposes of this section.'';
(c) by the substitution in subsection (3) for the words preceding paraJ,'Taph (a) of the rollov,dng words:
''A port or entry visa referred to in subsection (1 )-'';
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(d) by the substitution in subsection (3) for paragraph (a) of the following paragraph:
.. (a) may, subject to any (condition( terms and conditions that the Minister may deem fit. be granted by the Minister to any person who is not exempt, as contemplated in subsection (4), from the 5 requirement of having to be in possession of a valid port of entry visa, and who has applied for such a port of entry visa in the prescribed manner [and on the prescribed form];''; and
(e) by the substitution in subsection (4) for paragraph (a) of the following paragraph: 10
"(a) exempt any person or category of persons rrom subsection (I) with regard to the requirement of having to be in possession of a valid port of entry visa in order to obtain a visitor's !permit] visa contemplated in section 11. for a specified or unspecified period and either unconditionally or subject to the conditions that the Minister 15 may impose;".
Substitution of section 13 of Act 13 of2002, as amended by sections 15 and 47 of Act 19 of 2004
9. The following section is hereby substituted for section 13 of the principal Act:
"Study visa
13. (I) A study visa may be issued. in the prescribed manner, to a foreigner intending to study in the Republic for a period not less than the period of study, by the Director-General: Provided that such foreigner complies with the prescribed requirements.
20
(2) The holder of a study visa may conduct certain work as prescribed.". 25
Amendment of section 14 of Act 13 of2002, as amended by section 16 of Act 19 of 2004
10. Section 14 of the principal Act is hereby amended by the substitution in paragraph (b) of subsection (2) for the words preceding subparagraph (i) of the following words:
·• (b) (the Department of Foreign Alfairsj a department or another organ of state 30 responsible for the implementation of the treaty concemed under a delegation from the Director-General(, provided): Provided that-".
Amendment of section 15 of Act 13 of2002, as amended by section 17 of Act 19 of 2004 and section 5 of Act 3 of 2007
II. Section 15 of the principal Act is hereby amended- 35 (a) by the substitution in subsection (I) for the words preceding paragraph (a} of
the following words: "(A( Subject to subsection ( lA), a business (permit( visa may be issued by the Director-General to a foreigner intending to establish or invest in, or who has established or invested in'"" a business in the Republic in \Vhich 40 he or she may be employed, and an appropriate (permit] visa for the duration of the business !permit I visa to the members ofsuL·h Corcigner's immediate family: Provided that-'';
(h) by the substitution in subsection (I) for paragraph (c) of the following paragraph: 45
., (c) such foreigner ha.'i undertaken to = ill comply \\~ith any relevant rl:gistration requirement set out
in any law administered by the South African Revenue Service; and
(ii) emplovtheprescribed percentage or number of citizens 50 or pcnnanent residents within a period of 12 months from the date of issue of the visa."; and
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(c) by the insertion after subsection (I) of the following subsection: "(I A) No business visa may be issued or renewed in respect of any
business undertaking which is listed as undesirable by the Minister from time to time in the Gazette, after consultation with the Minister responsible for trade and industry.". 5
Amendment of section 19 of Act 13 of 2002, as amended by section 21 of Act 19 of 2004 and section 6 of Act 3 of 2007
12. Section 19 of the principal Act is hereby amended- ( a) by the deletion of subsection (I): (h) by the substitution for subsection (2) of the following subsection: 10
'"(2) A general work ]permit] visa may be issued by the Director- General to a foreigner not falling within a category ]or class] contemplated in subsection [I] f.:U [if the prospective employer- ( a) satisfies the Director-General in the manner prescribed that
despite diligent search he or she has been unable to employ a 15 person in the Republic with qualifications or skills and experience equivalent to those of the applicant;
(h) satisfies the Director-General in the prescribed manner that the terms and conditions under whkh he or she intends to employ that foreigner, including salary and benefits, are not inferior to 10 those prevailing in the relevant market segment for citizens, taking into account applicable collective bargaining agreements and other applicable standards; and
(c) has agreed in writing to notify the Director-General when such foreigner is no longer employed or is employed in a different 25 capacity or role! and who complies with the prescribed require- ments •·.
(c) by the deletion ~f,subsection (3); and (d) by the substitution for subsections ( 4) and (5) of the following subsections:
''(4) Subject to any prescribed requirements, Jan exceptional! a 30 critical skills work ]permit] visa may be issued by the Director-General to an individual possessing [exceptional) such skills or qualifications determined to be critical for the Republic from time to time by the Minister by notice in the Ga=ette and to those members of his or her immediate family detem1ined by the Director-General under the 35 circumstances or as may he prescribed.
(5) An intra-company transfer work pennit may be issued by the Director-General to a foreigner who lis employed abroad by a business operating in the Republic in a branch, subsidiary or affiliate relationship and who by reason of his or her employment is required 40 to conduct \'\o'ork in tbe Republic for a period not exceeding t\\'O years, provided that- ( a) the employer undertakes that it will take prescribed measures
to ensure that such foreigner will at all times comply with the provisions of this Act, and will immediately notify the Director- 45 General if it has reason to believe otherwise; and
(h) the employer furnishes the prescribed financial guarantees to defray deportation and other costs should such foreigner fail to depart when no longer allowed to sojourn in the Republic] complies \Vith the prescribed requirements.". 50
Amendment of section 21 of Act 13 of 2002, as amended by section 22 of Act 19 of 2004
13. Section 21 of the principal Act is hereby amended- ( a} by the substitution for subsection (1) of the following suhscl:tion:
"(I) [A] Subject to suhscction (lA), a corporate [permit[ visa may be 55 issued by the Director-General to a corporate applicant, to employ
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foreigners who may conduct work for such corporate applicant in the Republic.";
(h) by the insertion after subsection (1) of the following subsection: "(lA) No corporate visa may be issued or renewed in respect of any
business undertaking which is listed as undesirable by the Minister from 5 time to time in the Gazelle, after consultation with the Minister responsible for trade and industry.";
(c) by the substitution in subsection (2) for the words preceding paragraph (a) of the following words:
"[After consultation with the Departments of Labour and Trade 10 and Industry, the[ The Director-General shall determine, in consulta- tion with the prescribed departments, the maximum number of foreigners to be employed in terms of a corporate [permit[ visa by a corporate applicant, after having considered-''; --
(d) by the deletion of subsection (5); and 15 (e) by the addition of the following subsection:
"(6) A foreigner employed in terms of a corporate visa shall work for the holder of that corporate visa.".
Amendment of section 22 of Act 13 of2002, as amended by sections 23 and 47 of Act 19 of2004 20
14. Section 22 of the principal Act is hereby amended- ( a) by the substitution in paragraph (b) for the words preceding subparagraph (i)
of the following words: "who is under 25 years of age and has received an offer to conduct work for no longer than one year[, provided[: Provided that-"; 25
(b) by the deletion of "and" in subparagraph (iii) of paragraph (h); and (c) by the addition in paragraph (b) of the following subparagraph:
"(iv) no visa may be wanted under this section if the offer to conduct work pertains to an undesirable work as published by the Minister from time to time in the Gazette, after 30 consultation \vith the Minister responsible for trade and industry.".
Substitution of section 23 of Act 13 of 2002, as amended by section 24 of Act 19 of 2004
15. The following section is hcrchy substituted for section 23 of the principal Act: 35
"Asylum transit [permit] visa
23. (!) The Director-General may. subject to the prescribed procedure under which an asylum transit visa may be granted. issue an asylum transit visa to a person who at a port of entry claims to be an a">ylum seeker, valid for a period of five days only, to travel to the nearest Refugee Reception 40 Office in order to apply for asylum.
(2) Despite anything contained in any other hnv, when the visa contemplated in subsection (I) expires before the holder reports in person at a Refugee Reception Office in order to apply for asylum in terms of section 21 of the Refugees Act, 199X (Act No. 130 of 1998), the holder of 45 that visa shall become an illegal foreigner and be dealt with in accordance with this Act.".
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Repeal of section 24 of Act 13 of 2002, as amended by section 25 of Act 19 of 2004
16. Section 24 of the principal Act is hereby repealed.
Amendment of section 26 of Act 13 of 2002, as amended by section 27 of Act 19 of 2004
17. Section 26 of the principal Act is hereby amended- 5 (a) by the substitution for the words preceding paragraph (a} of the following
words: ''Subject to section 25 and any prescribed requirements, the Director- General may issue a pt!nnanent residence pem1it to a foreigner who-'': and 10
(b) by the substitution for paragraphs (a) and (b) of the following paragraphs: "(a) has been the holder of a work [permit[ visa[, including one issued
under a corporate permit,[ in tenns of this Act for five years and has proven to the satisfaction of the Director-General that he or she has received an offer for pennanent employment; 15
(h) has been the spouse of a citizen or penn anent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists: Provided that such permanent residence pem1it shall lapse if at any time within two years from the issuing of that pennanent residence permit the good faith spousal relationship no 20 longer subsists, save for the case of death;''.
Amendment of section 27 of Act 13 of 2002, as amended by section 28 of Act 19 of 2004 and section 8 of Act 3 of 2007
18. Section 27 of the principal Act is hereby amended- ( a} by the substitution for the words preceding paragraph (aj of the following 25
words: ''The Director-General may. subject to any prescribed requirements.
issUt: a pennanent residcnc~: permit to a fon:igner of good and sound character who-···-";
(h) by the substitution in paragraph (c) for the words preceding subparagraph (i) 30 of the following words:
•· (c) intends to establish or has established a business in the Republic, as contemplated in section 15, and investing in it or in an established business, a.;; contemplated in scction 15, the prescribed financial contribution to be part of the intended book value, and to the 35 members of such foreigner~s immediate family[, provided}: Pro- vided that-"; and --
(c) by the substitution in paragraph (c) for subparagraph (ii) of the tollowing subparagraph:
·'(ii) the permanent residence permit shall lapse if the holder fails to 40 prove \vithin two years of the issuance of the pcnnancnt residence pem1it and three years thereafter. to the satisfaction of the Director-General. that the prescribed financial contribution to he part of the intended book value is still invested as contem· plated in this paragraph:". 45
Amendment of section 29 of Act 13 of2002, as amended by section 30 of Act 19 of 2004
19. Section 29 of the principal Act is hereby amended- lu) by the substitution in subsection (I) for the words preceding paragraphIa) of
the foiiO\ving words: 50 ''The follmving foreigners arc prohibited persons and do not qualify for a port of entry visa, admission into the Republic, a [temporary} visa or a permanent residence permit:'';
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(b) by the substitution in subsection (1) for paragraph (b) of the following paragraph:
"'(b) anyone against \Vhom a warrant is outstanding or a conviction has been secured in the Republic or a foreign countty in respect of genocide, terrorism, human smuggling, trafficking in persons, 5 murder, torture, drug-related charges, money laundering or kidnap- ping;"; and
(c) by the substitution in subsection (1) for paragraph (f) of the following paragraph:
"(f) anyone found in possession of a fraudulent [residence permit,] 1 0 visa. passport, permanent residence permit or identification docu- ment.".
Amendment of section 30 of Act 13 of 2002, as amended by section 31 of Act 19 of 2004
20. Section 30 of the principal i\ct is hereby amendcd- (a) by the substitution in subsection ( 1) for the words preceding paragraph (a} of
the following words:
15
"The following foreigners may be declared undesirable by the Director-General, as prescribed, and ailer such declaration[,] do not qualify for a port of entry visa, visa, admission into the Republic [, a 20 temporary I or a pennanent residence permit:";
(b) by the substitution in subsection (I) for paragraphs((! and (g) ofthe following paragraphs:
"((! anyone who is a fugitive !rom justice; [and] !g) anyone with previous criminal convictions without the option of a 25
Cine for conduct which would be an offence in the Republic, with the exclusion of certain prescribed offences J.L anJ''; and
(c) by the addition of the following paragraph: ''(hJ any person who has overstayed the prescribed number of times.".
Substitution of section 35 of Act 13 of 2002, as amended by section 36 of Act 19 of 30 2004
21. The follmving section is hereby substituted for section 35 of the principal Act:
"Duties with regard to conveyances
35. (I ) Save for exceptional circumstances nt:ccssitating othen-visc, no person in charge of a conveyance shall cause that conveyance to enter the 35 Republic at any place other than at a port of entry.
(2) (a) The owner or person in charge of a prescribed conveyance entering into. departing from or in transit through the Republic, shall comply with the provisions of this section by enabling electronic transmission and receipt of the prescribed information to the Director- 40 General in the prescribed manner.
{b) The owner or person in charge of a conveyance entering into, departing from or in transit through the Republic. shall \vithin the prescribed period prior to boarding persons onto his or her conveyance, electronically transmit the prescribed information to the Director-General 45 in respect of each person.
(c) The o\vncr or person in charge of a conveyance shall act m accordance v.'ith a boarding advice issued by the Director-General m respect of each person contemplated in paragraph (b).
(3) (a) The owner or person in charge of a conveyance cnt~.;ring into, 50 departing from or in transit through the Republic by air or conveying persons on domestic flights \Vithin the Republic. shall comply with the provisions of this section by enabling electronic transmission of the prescribed passenger name record infonnation in respect of all persons
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booked to travel on his or her conveyance to the Director-General in the prescribed manner.
(b) The owner or person contemplated in paragraph (a) shall, within the prescribed period prior to the scheduled time of departure of his or her conveyance, electronically transmit the prescribed passenger name record 5 information to the Director-General in the prescribed manner.
(c) The information contemplated in paragraph (a) shall be used by the Director-General for the better achievement of the objectives of this Act and the Director-General shall adopt prescribed measures to safeguard the protection of that information in accordance \Vith legislation governing the I 0 protection of personal information.
(4) An immigration officer or other authorised person employed by the Director-General may-
( a) board any conveyance which is entering or has entered into any port of entry and on good cause shown prohibit or regulate disembarka- IS tion from, or the oftloading of, such conveyance in order to ascertain the status or citizenship of its passengers; and
(h) request the person in control of a port of entry or any person acting under his or her authority to order the person in charge of a conveyance to park, moor or anchor that conveyance in such port of 20 entry at such distance from the shore or landing place or in such position as such immigration officer or other authorised person employed by the Director-General may direct.
( 5) The person in charge of a conveyance entering or prior to entering a port of entry shall upon demand deliver to an immigration officer- 25 (a) a list stating-
(i) the names of all passengers on board of that conveyance, classified according to their respective destinations; and
(ii) such other details as may be prescribed: (b) a list of stowaways, if any have been found; 30 (c) a list of the crew and all other persons, other than passengers and
stmvaways, employed, carried or present on the conveyance; and (d) a return, under the hand of the medical officer of that conveyance or, if
there is no such medical officer, under the hand of the person in charge of a conveyance himself or herself, stating- 3 5
(i) any cases of disease, whether infectious or othenvisc, \vhich have occurred or are suspected to have occuned upon the voyage;
(ii) the names of the persons who suffered or arc sull'ering from such disease; 40
(iii) details of any birth or death which occurred upon the voyage between such port of entry and a previous port; and
(iv) any other prescribed matter or event: Provided that such immigration officer may-
faa) exempt from the requirements of this subsection the master of 45 a ship destined flx any other port in the Republic, subject to compliance with the duty to deliver such lists or retum at such port and with any directive such immigration officer may issue to the master; and
(hh) if satisfied that a name should be added to or deleted from any 50 such lists, authorise such addition or deletion.
(6) If a conveyance arrives at a port of entry with a passenger on board bound for a destination outside the Republic and that passenger is not on board v.-hcn the conveyance leaves such port of entry and has not been admitted, the person in charge or the owner of that conveyance shall fOrfeit 55 a sum fixed hy the immigration officer \vithin a prescribed limit.
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(7) An immigration officer may require the person in charge of a conveyance to muster the crew of such conveyance on the arrival of such conveyance in any port of entry and again before it leaves such port of entry.
(8) The competent officer of customs at any port of entry may refuse to 5 give to the person in charge of a conveyance clearance papers to leave that port of entry, unless he or she has complied with this Act and produced a certificate issued by an immigration officer to that efi'ect.
(9) A person in charge of a conveyance shall ensure that any foreigner conveyed to a port of entry, for purposes of travelling to a foreign country, I 0 holds a valid passport and transit visa or port of entry visa, if required.
(10) A person in charge of a conveyance shall be responsible for the detention and removal of a person conveyed if such person is refused admission in the prescribed manner, as well as for any costs related to such detention and removal incurred by the Department.". 15
Amendment of section 43 of Act 13 of 2002, as amended by section 41 of Act 19 of 2004
22. Section 43 of the principal Act is hereby amended by the substitution l(lr paragraph (a) of the following paragraph:
"(a) abide by the terms and conditions ofhis or her status. including any terms and 20 conditions attached to the relevant visa or permanent residence penn it, as the case may be, by the Director-General upon its issuance, extension or renewal, and that status shall expire upon the violation of those temts and conditions; and!'.
Repeal of section 46 of Act13 of 2002, as amended by section 47 of Actl9 of 2004 25
23. Section 46 of the principal Act is hereby repealed.
Amendment of section 49 of Act 13 of 2002, as amended by section 45 of Act 19 of 2004
24, Section 49 of the principal Act is hereby amended by the substitution for subsections (I). (2). (3), (5). (6), (7), (8). (9). (I 0). (II). ( 13 ). ( 14). ( 15) and ( 16) of the 30 following subsections. respectively:
"( 1) (aj Anyone who enters or remains in, or departs from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding (three months] two years.
(b) Any illegal foreigner who fails to depart when so ordered by the 35 Director-General, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding [nine months] four yc:ars.
(2) Anyone who knowingly assists a person to enter or remain in, or depart from the Republic in contravention of this Act, shall be guilty of an olfenec and liable on conviction to a fine or to imprisonment not exceeding [one year[ five years. 40
(3) Anyone \Vho knowingly employs an illegal foreigner or a foreigner in violation of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year[, provided]: Provided that such person's second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine, and the third or subsequent convictions of such 45 offences hy imprisonment not exceeding [three[ five years v.rithout the option of a fmc.
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( 5) Any ]civil] public servant who provides false or intentionally inaccurate or unauthorised documentation or benefit to an illegal foreigner, or otherwise facilitates such illegal foreigner to disguise his or her identity or status, or accepts any undue financial or other consideration to perform an act or to exercise his or her discretion in tcnns ofthisAct, shall be guilty of an offence and liable on conviction 5 to la fine or to] imprisonment not exceeding [two] eight years without the option of a fine ], provided]: Provided that if such [civil] public servant is employed by the Department, such offence shall be punishable by imprisonment not exceeding ]three] .J1 years without the option of a fine.
(6) Anyone failing to comply with one of the duties or obligations set out under 10 sections 38 to 46, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding 118 months] five years.
(7) Anyone participating in a conspiracy of two or more persons to conduct an activity intended to contravene this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding (fourf seven years (, 15 provided]: Provided that if part of such activity is conducted or intended to be conducted in a foreign country, the offence shall be punishable by imprisonment not exceeding (four) eight years without the option of a fine.
(8) Anyone who wilfully or through gross negligence produces a false certification contemplated by this Act, shall be guilty of an offence and liable on 20 conviction to a fine or to imprisonment not exceeding (one year] three years.
(9) Anyone, other than a duly authorised ]civil] public servant, who manufac- tures or provides or causes the manufacturing or provision of a document purp011ing to be a document issued or administered by the Department, shall be guilty of an offence and liable on conviction to ]a fine or to] imprisonment not 25 exceeding ]two] 10 years without the option of a fine.
(1 0) Anyone v. .. ho through offers of financial or other consideration or threats, compels or induces an officer to contravene this Act or to breach such officer's duties, shall be guilty of an offence and liable on conviction- ( a) to a fine or to imprisonment not exceeding (18 months] five years; or 30 (b) if subsequently such officer in fact contravenes this Act or breaches his or her
duties1 to Ia fine or to! imprisonment not exceeding I three) five years without the option of a fine.
(II) Anyone guilty of the offence contemplated in section 34( I 0) shall be liable on conviction to a fine or to imprisonment not exceeding (six months) three vears. 35
(13) Any person who pretends to be, or impersonates, an immigration officer. shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding ]four] eight years.
(14) Any person who fOr the purpose of entering or remaining in, or departing from, or of facilitating or assisting the entrance into. residence in or departure from. 40 the Republic, whether in contravention of this Act or not, commits any frnudulent act or makes any false representation by conduct, statement or otherwise, shall be guilty of an otfencc and liable on conviction to a fine or to imprisonment not exceeding (four) eight years.
( 15) Any natural or juristic person. or a partnership, who- 45 (a) for the purpose of entering the Republic. or of remaining therein, in
contravention of this Act, or departing from the Republic, or of assisting any other person so as to enter or so to remain or so to depart, utters. uses or attempts to use- (i) any permanent residence permit, port of entry visa, visa, certificate, 50
written authority or other document which has been issued by lawful authority. or which, though issued by lawful authority. he, (orf she or it is not entitled to use; or - --
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(ii) any fabricated or falsified permanent residence permit, port of entry visa, visa. certificate, written authority or other document; or
(h) without sufficient cause has in his, Iori her or its posscssion- (i) any stamp or other instrument which is used or capable of being used for
purposes of fabricating or falsifying or unlawfully recording on any 5 document any endorsement under this Act or required to be submitted in terms of this Act;
(ii) any fonn officially printed tor purposes of issuing any pennanent residence permit, port of entry visa, visa, certificate. v.rritten authority or other document under this Act or required to be submitted in terms of this 10 Act. or any reproduction or imitation of any such fonn~
(iii) any passport, travel document, identity document or other document used for the facilitation of movement across borders, which is blank or reflects particulars other than those of the person in whose possession it is found; or 15
(iv) any fabricated or falsified passport, travel document, identity document or other document used for the facilitation of movement across borders,
shall be guilty of an offence and liable on conviction to Ia fine or to] imprisonment for a period not exceeding lfourl .l?_ years without the option of a fine.
( 16) Any person wh