Immigration Act

Link to law: http://www.gov.za/documents/immigration-act
Published: 2002-05-31

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
Immigration Act [No. 13 of 2002]


Government Gazette

REPUBLIC OF SOUTH AFRICA
Vol. 443 Cape Town 31 May 2002 No. 23478
THE PRESIDENCY
No. 766 31 May 2002
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 13 of 2002: Immigration Act, 2002.


2 No. 23478 GOVERNMENT GAZETTE, 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
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 30 May 2002.)
ACT To provide for the regulation of admission of persons to, their residence in, and their departure from the Republic; and for matters connected therewith.
PREAMBLE In providing for the regulation of admission of foreigners to, their residence in. and their departure from the Republic and for matters connected therewith. the Immi- gration Act aims at setting in place a new system of immigration control which ensures that-
temporary and permanent residence permits are issued as expeditiously as possible and on the basis of simplified procedures and objective, predictable and reasonable requirements and criteria, without consuming excessive administrative capacity; security considerations are fully satisfied and the State retains control on the immigration of foreigners to the Republic; interdepartmental coordination constantly enriches the functions of immigra- tion control and that a constant flow of public inputs is present in further stages of policy formulation. including regulation making; the needs and aspirations of the age of globalization are respected and the provisions and the spirit of the General Agreement on Trade in Services is complied with; border monitoring is strengthened to ensure that the borders of the Repddic do not remain porous and illegal immigration through them may be effectively detected. reduced and deterred; ports of entry are efficiently administered and managed: immigration laws are efficiently and effectively enforced, deploying to this end significant administrative capacity of the Departtnent of Home Affairs. thereby reducing the pull factors of illegal immigration; the South African economy may have access at all times to the full measure of needed contributions by foreigners;
4 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13.2002 IMMIGRATION ACT. 2002
(i) the contribution of foreigners in the South African labour market does not adversely impact on existing labour standards and the rights and expectations of South African workers;
(j) a policy connection is maintained between foreigners working in South Africa and the training of our nationals;
( k ) push factors of illegal immigration may be addressed in cooperation with other Departments and the foreign states concerned;
( I ) immigration control is performed within the highest applicable standards of human rights protection, and
( m ) xenophobia is prevented and countered both within Government and ciyil society.
B E IT ENACTED by the Parliament of the Republic of South Africa. as follows:- TABLE OF CONTENTS
Sections
1. Definitions
OBJECTIVES AND STRUCTURES OF IMMIGRATION CONTROL
2. 3. 4. 5. 6. 7. 8.
9.
IO. 11 . 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.
25. 26. 27. 28.
Objectives and functions of immigration control Powers of the Department Immigration Advisory Board Functions of Bourd Inter-departmental co-operation Regulation making Adjudication and review procedures
ADMISSION AND DEPARTURE
Admission and departure
TEMPORARY RESIDENCE
Temporary residence permits Visitor’s permit Diplomatic permit Study permit Treaty permit Business permit Crew permit Medical treatment permit Relative’s permit Work permits Retired person permit Corporate permit Exchange permit Asylum Cross-border and transit passes
PERMANENT RESIDENCE
Permanent residence Direct residence Residence on other grounds Withdrawal of permanent residence
5
10
15
30
35
30
35
6 No. 23178 GOVERNMENT GAZETTE. 3 I MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
29. 30. 31.
32. 33. 34. 35. 36.
37.
38. 39. 40. 41. 42. 43. 4. 45.
46. 47. 48.
49. 50.
51. 52. 53. 54. 55.
EXCLUSIONS AND EXEMPTIONS
Prohibited persons Undesirable persons Exemptions
ENFORCEMENT AND MONITORING
Illegal foreigners Inspectorate Deportation and detention of illegal foreigners Ships Monitoring entries in Republic and exits
IMMIGRATION COURTS
Immigration Courts
DUTIES AND OBLIGATIONS
Employment Learning institutions Accommodation Identification Aiding and abetting illegal foreigners Obligation offoreigners Organs o f State Other institutions
MISCELLANEOUS
Immigration practitioners Internal monitoring and control Foreigners erroneously allowed to enter Republic
OFFENCES
Offences Administrative offences
TRANSITIONAL PROVISIONS
Transitional definitions Functions o f Department and Board Existing permits Repeal of laws Short title and commencement
SCHEDULES
5
10
15
20
25
30
35
Schedule 1 : Offences referred to in section 28(a) and (b) of the Act Schedule 2: Offences referred to in section 28(6) of the Act Schedule 3: Laws repealed or amended
8 No. 23378 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
Definitions and interpretation
1. ( 1 ) In this Act, unless the context indicates otherwise- (i) “admission” means entering the Republic at aport of e n t n on the basis of the
authority to do so validly granted by this Act or by an immigration officer in terms of this Act, and the verb “to admit” has a corresponding meaning: 5
(ii) “application” means a request in the prescribed form which complies with the requirements and provides the information and documentation which may be prescribed;
(iii) “Board” means the Immigration Advisory Board contemplated in section 4 of this Act; 10
(iv) “border” means the national borders of the Republic and includes ports of entry, coastlines and the outer margin of territorial waters;
(v) “chartered accountant” means a person referred to in section 1 of the Chartered Accountants Designation (Private) Act, 1993 (Act No. 67 of 1993) and includes an accountant, other than a chartered a ~ c o u ~ ~ t a n t . who is 1.5 recognised as such under any law and who has been specifically or generally delegated by a chartered accounratzt to perform any or all activities contemplated in this Act;
(vi) “citicen” has the meaning assigned thereto in the South African Citizenship Act, 1995 and “citizenship” has a corresponding meaning; 20
(vii) “corporate applicant” means a juristic person established under the laws of the Republic or of a foreign countn which conducts business. not-for-gain. agricultural or commercial activities within the Republic and which applies for a corporate permit referred to in section 21 of this Act:
this Act; (ix) “c*ustomar~ union” means a conjugal relationship according to indigenous
law and custom and which is recognised and documented as prescribed: (x) ”Department” means the Departmerzt of Home Affairs;
(xi) ”departure” means exiting the Republic from a port ofenrr? in compliance 30 with this Act and the verb “ to depart” has a corresponding meaning;
(xii) ”deportation“ means the action or procedure aimed at causing an illrgtrl foreigner to leave the Republic involuntarily, or under detention in terms of this Act and the verb “to deport” has a corresponding meaning;
(viii) “Court” means an Immigration Court established in terms of section 37 of 25
(xi i i ) “Director-General” means the Director-General of the Deprtmerlt; 3.5 (xiv) “employer” includes the person contractually bound by the applicable
employment contract as an emplo!er or. in the case of a juristic person. its chief executive officer or the person to whom such officer has delegated the final responsibility in respect of personnel matters:
(xv) ”foreign country” means a country other than the Republic: 40 (xvi) ’foreign state” means the juristic entity governing a for-eigrl courltr?.:
(xvii) ’foreigner” means an individual who is neither a ciri:en nor a resideut. but is not an illegal foreigner:
(xviii) ”illega1,foreigner” means an foreigner who is in the Republic i n contraven- tion of this Act and includes a prohibited person; 4.5
(xix) ”immediate family” means persons within the second step of kinship. where marriage or a spousal relationship is counted as one of such steps. but any common antecedent is not so counted:
10’ No. 23478 GOVERNMENT GAZETTE. 31 MAY 2002
Act No. 13,2002 IMMIGRATION CT, 2002
(xx)
(xxi)
(xxii)
(xxiii) (xxiv) (xxv)
(xxvi)
(xxvii)
(xxviii)
(xxix)
(xxx) (xxxij
(xxxii)
“immigration oflcer” means an officer of the Department. or another person having the prescribed requirements, appointed as such from time to time by the Deparrment and, for purposes of this Act, includes a person employed in. or contracted by, the Department who has been authorised by the Deparrment to exercise certain powers and perform certain functions in the name of and on 5 behalf of the Department; “marriage” means a legally sanctioned conjugal relationship intended to be permanent and concluded under the laws of the Republic, or under the laws of a foreign country as prescribed from time to time, and includes a C L I S I O I ~ L I I ~ union; 10 “master” means the master of a ship and refers to the person who at any given time is in charge or command of a ship; “Minisrer” means the Minisrer of Home Affairs; “organ of State” has the meaning defined in section 239 of the Constitution: “owner” means the owner of record and, in the case of a ship, it includes the 15 charterer of the ship and any agent within the Republic of the obL’ner or the charterer: “passport” means any passport or travel document containing the prescribed information and characteristics issued- ( a ) under the South African Passport and Travel Document Act. 1994: 30 (b) on behalf of a foreign stare recognised by the Government of the
Republic to a person who is not a citizen; ( c ) on behalf of any international organisation prescribed from time to time.
including regional or sub-regional ones, to a person who is not a citixw: and 25
( d ) any other document approved by the Director-General after consultation with the Minisrer and issued under special circumstances to a person who cannot obtain a document referred to in paragraphs ( a ) to (c);
“port ofenrry” means a place prescribed from time to time where aJbreigner has to report before he or she may move, sojourn or remain within. or enter the 30 Republic: “premises” means any building, structure or tent together with the land on which it is situated and the adjoining land used in connection with i t and includes any land without any building, structure or tent and any vehicle. conveyance, or ship; 35 “prescribed” means provided for by regulation, the verb “to prescribe“ has a corresponding meaning and “prescribed from time to time“ refers to section 7(2); “prohibited person” means any person referred to in section 29 of this Act: “publish” means publish by notice in the Gouernmetzt Gtrzette and. to the 40 extent possible and feasible under the circumstances, convey by mail or e- mail to parties or stakeholders who have requested their inclusion or have been included in mailing lists to be maintained by the Deparrment in respect of subject matters in respect of which public input is called for by this Act. prescribed. advisable or expedient: 45 “regularions” means generil rules adopted by the Minister after consultation with the Board in terms of this Acr and published:
(xxxiii) “Republic” means the Republic of South Africa and its territory:
12 No. 23478 GOVERNMENT GAZETTE. 3 1 M.AY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
(xxxiv) “resident” means the holder of a permanent residence permit referred to in
(xxxv) “ship” includes any vessel, boat, aircraft or other prescribed conveyance; (xxxvi) “spouse” means a person who is party to a marriage, or a customary urlion, or
to a permanent homosexual or heterosexual relationship which calls for 5 cohabitation and mutual financial and emotional support, and is proven by a prescribed affidavit substantiated by a notarial contract and ”spousal relationship” has a corresponding meaning;
(xxxvii) “status” means the permanent or temporan residence issued to a person in terms of this Act and includes the rights and obligations flowing therefrom, 10 including any term and condition of residence imposed by the Department when issuing any such permits;
section 25 of this Act;
(xxxviii) “temporary residence” means a permit referred to in section 10 of this Act: (ixl) “this Act” means this Act, including its schedules, and includes the
(xl) “training fund” means the public record referred to in section 2(2)(gl(ii of
(xli) “undesirable person” means a person referred to in section 30 of this Act: (xlii) “visa” means the prescribed endorsement issued upon application on the
valid passport of a foreigner granting such foreigner the authority to proceed 20 to the Republic to report for a prescribed examination to an immigration officer at the port of entry with a view to admission on a specified ternpornn residence, which at any time before adtnission may be withdrawn by the Department;
Republic, excluding work on the basis of a permit referred to in sections 12 or 14. or work for a foreign employer pursuant to a contract which only partially calls for activities in the Republic, or work as a business or profession mainly based outside the Republic but requiring activities within the Republic.
regulations made pursuant thereto; 15
this Act;
(xliii) “tc..ork” means business, commercial or remunerative activities within the 25
(2) In sections 15. 18, 19, 21, 26 and 27. whenever a certificate by a chc~rtered 30 accountant is called for. the applicant may instead elect that such certificate be furnished by another person to whom the facts contained in the certificate are known, but in e\.ery case where the certificate is issued to a person other than a chartered ~ c c o ~ ~ ~ t ~ z n r . i t shall be necessary for the Department to verify the facts itself.
OBJECTIVES AND STRUCTURES OF IMMIGRATION CONTROL 35
Objectives and functions of immigration control
2. (1) In the administration of this Act, the Department shall pursue the following
( a ) Promoting a human-rights based culture in both government and civil society in respect of immigration control; 40
( b ) facilitating and simplifying the issuance of permanent and t enyoran residences to those who are entitled to them. and concentrating resources and eforts in enforcing this Act at community level and discouraging illegd foreigners;
f c ) detecting and d porting illegal foreigners; 45
objectives:
14 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 2002 _ _ _ ~ ~
Act No. 13,2002 IMMIGRATION ACT, 2002 ~ _ _ _
creating a climate of cooperation with other organs of State to encourage them to take responsibility in implementing [his Act within the ambit of their respective powers and functions; preventing and deterring xenophobia within the Department, any sphere of government or organ of State and at community level; 5 creating a climate of cooperation with communities and organs of civil society, including trade unions, to encourage them to cooperate with the Department to implement this Act; promoting a climate within the Republic which encourages illegal foreigners to depart voluntarily; 10 ensuring that, subject to this Act, migration to and from the Republic takes place only at ports of entry and illegal crossing of the borders is deterred, detected and punished; promoting integration of functions. harmonisation and cooperative relations among all organs of State with responsibilities in respect of controlling the 15 borders and activities at ports of entry; regulating the influx of foreigners and residents in the Republic to- (i) promote economic growth, inter alia. by-
(aa) ensuring that businesses in the Republic may employ foreigners who are needed; 20
(bb) facilitating foreign investments, tourism and industries in the Republic which are reliant on international exchanges of people and personnel;
(cc) enabling exceptionally skilled or qualified people to sojourn in the Republic; 25
(dd) increasing skilled human resources in the Republic; (eel facilitating the movement of students and academic staff within the
Southern African Development Community for study, teaching and research; and
($) promoting tourism; 30 (ii) where applicable. encouraging the training of citizens and residents by
employers to reduce employers’s dependence on foreigners‘ labour and promote the transfer of skills from foreigners to citizens and residents:
(iii) enable family reunification; administering the prescribed fees, fines and other payments it exacts or 35 receives in such a fashion as to defray the overall cost of its oDeration administering refugee protection andrelated legislation:
thereto; and ( m ) administering citizenship by naturalisation and incidental matters relating
( n ) facilitating compliance with e Republic’s international obligations. 40 ( 2 ) In order to achieve the objectives set out in subsection ( l ) , the Deparrlnent shall-
( a ) inspect workplaces in the prescribed manner to ensure that no illegal foreigner is employed and that foreigners. if any, are employed in the job description and at the terms and conditions set out in their temporan residences, and tl~nr the relevant training fees, if any are paid: 45
(b ) inspect institutions of learning to ensure that illega1,foreigners are not enrolled therein:
( e ) liaise with the South Africa Police Service to-
16 No. 23478 GOVERNMENT GAZETTE. 3 I M24Y 2002
Act No. 13, 2002 IMMIGRATION ACT, 2002
(ij ensure that the identity of people who are arrested, detained or convicted
(ii) educate and instruct law-enforcing agencies to detect illegal foreigners
liaise with the South African Revenue Service to ensure that the identity of people who contravene the provisions of the laws administered by the Commissioner for the South African Revenue Services is checked for purposes of th is Act: educate communities and organs of civil society on the rights of foreigners, illegcd foreigners and refugees, and conduct other activities to prevent xenophobia; in cooperation with the Department of Foreign Affairs- ( i ) promote programmes in foreign countries with the aim of detemng
people from becoming illegal foreigners; and ( i i j table the need for cooperation in preventing migration towards the
Republic on the agenda of relations with foreign states, negotiating appropriate measures and agreements with suchforeign states:
is checked for purposes of this Act; and
and report them to the Department;
maintain public records showing funds received or collected- ( i ) under this Act from employers as training fees or fines. which. in the
prescribed percentage, shall be known as the training j h d ; ( i i ) from foreign stares to defray the cost of repatriating illegal foreigners
originating from their country, as determined through international relations and agreements;
( i i i ) from donors or other sources: and ( i v j from other fees and fines imposed or exacted by the Deppartrnent in terms
of rhis Act which, in the percentage prescribed from time to time. shall be known as the judicial assistance fund:
monitor and exact compliance from any person or entity exercising responsibilities or bearing duties or obligations in terms of t h i s Act; deport illegal foreigners who are unwilling to leave the Reprhlic voluntarily; train its investigative unit to detect illegal ,foreigners. monitor compliance with the terms and conditions of permits, control borders. and perform any other function under rhis Act or which may be delegated to it: be empowered to contract through public tender with private persons to perform under its control any of its functions, including but not limited to detaining and escorting illegal foreigners for deportation purposes and manning ports of entry; administer ports of entry and monitor borders in terms of section 36 of this Act; and conduct any other activity called for by r h i s Acr or necessary for or conducive to its implementation.
Powers of Department
5
10
15
20
25
30
35
40
3. ( 1 ) Subject to. and for the purposes of. rhis Acr, through its duly authorised officers. the Depc~rrtnenr may-
18 No. 23178 GOVERNMENT GAZETTE. 31 MAY 2002
Act No. 13.2002 IMMIGRATION CT, 2002
( a ) enter workplaces and inspect employment records for the purposes of this Act; (b ) enter and inspect for purposes of this Act any place open to the public; ( c ) exercise any powers relevant to, or necessary for, the functions set out in
section 2 ( 2 ) ; ( d ) request any sphere of government or organ of State to- 5
(i) take actions or adopt procedures to ensure that the recipients of their services are identified as citizens and residents or foreigners: and
(ii) request that prescribed services, or licenses, or concessions or other actions be subject to proof of status or citizenship.
provided that such requirements shall not prevent the rendering of such 10 services to illegal foreigners when so required by the Constitution or a law;
( e ) request anyone in the Republic, who is reasonably suspected of being an illegul foreigner, to identify himself or herself as a citizen or resident, or to produce a permit to be in the Republic;
If:) organise and participate in community fora or other community-based 15 organisation to deter xenophobia and involve the citizenry in the upplication and implementation of this Act, and educate the citizenry in migration issues:
(9) apprehend, detain and deport any illegal foreigner: ( h i despite any other law, represent the State in any proceedings in a Court in
( i j assist the public prosecution of any offence under this Act: ( j ) enter into an agreement with any person, including any department of State. in
terms of which the Department will be authorised to make use of any of the facilities. equipment or personnel belonging to. or under the control. or in the employment of such person or department: 25
f k i exercise any other power called for by this Act, or necessary for or conducive to its implementation: and
(1 ) delegate any of its powers and functions, provided that- ( i ) the terms and conditions of such delegations are approved by the
Minister after consultation with the Board: and 30 ( i i ) such delegation is performance audited by the Director-Gn?eml and
reviewed by the Board every twelve months to express a recommenda- tion to the Minister, failing which it shall lapse.
( 2 ) Subject to this Act, the powers and functions vested in the Departnlenr and the
respect of any matter arising out of this Act: 20
Director-General in terms of this Act shall be exercised and performed as directed by the 35 Minister.
functions vested in him or her in terms of this Act. (3) The Minister may delegate to the Director-General any of the powers and
Immigration Advisory Board
4. ( 1 ) The Immigration Advisory Board is hereby stablished. 40 ( 2 ) The Board shall be chaired by a designee of the Minister and consist of-
( a ) one representative of the Department of Trade and Industry: ( 0 ) one representative of the Department of Labour:
20 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
(c) one representative of the Department of Tourism; (d) one representative of the Department of Finance; ( e ) one representative of the Department of Safety and Security; (f, one representative of the South African Revenue Service; (g) one representative of the Department of Education; (h ) one representative of the Department of Foreign Affairs; ( i ) one representative of the Department of Defence; ( j ) the Director-General; ( k ) up to five persons from civil society, including one representing organised
labour and one representing organised business. appointed by the Minister after the Minister has given notice in the Gazette soliciting public nominations of such persons; and
( I ) up to four individuals appointed by the Mirzisrer on grounds of their expertise in administration. regulatory matters or immigration law, control, adjudica- tion or enforcement.
( a ) shall meet regularly; (b) may determine its procedures at meetings: ( c ) may invite immigration officers and other employees of the Department to
( d ) may appoint committees from its members to assist in the performance of its
(3) The Board shall meet when called by the Chairperson and-
attend or participate in its meetings; and
functions. (4) A member of the Board referred to in subsection ( 2 ) ( k ) and (I) shall-
( ( I ) serve for a four-year-term, at the expiry of which they shall be eligible for one or more re-appointments, provided that the Minister may elect to fill any vacancy which may occur by appointing a person for the unexpired portion of the term of the member in whose place such person is appointed:
(i) be or become an unrehabilitated insolvent: ( i i ) be or have been judicially declared of unsound mind:
( i i i ) suffer an infirmity of mind or body preventing him or her from the proper
( iv) be convicted by final conviction or sentence of an offence without the
( v ) be or become a political office bearer: or (vi) be or have been removed from an office of trust on account of misconduct
( b ) at no time-
discharge of the duties of his or her office:
option of a fine;
involving theft or fraud; ( c ) cease to be a member-
5
10
15
20
25
30
35
(i) on resignation; (ii) if requested by the Minister to resign for good cause: 40
( i i i ) if he or she fails to attend two consecutive meetings of the Board. unless
(iv) if he or she becomes disqualified in terms of this Act; and
determined from time to time by the Minister after consultation with the 45 Dir-ector-General and with the approval of the Minister of Finance.
his or her apology has been accepted by the Board; or
(d) be paid such remuneration and be entitled to such benefits and allowances as
~~
22 No. 23478 GOVERNMENT GAZETTE. 3 I MAY 2 0 0 2
Act No. 13,2002 IMMIGRATION ACT, 2002
( 5 ) The Board may request he Department to provide it with the necessary administrative capacity and assistance.
(6) The Board may establish and operate through committees to carry out its functions.
(7) The Minister may dissolve the Board on such terms and conditions as he or she sees fit, provided that a new Board shall be convened within 90 calendar days.
(8) The members of the Board who are not public servants shall be entitled to such remuneration and reimbursements as the Minister may determine from time to time in consultation with the Minister of Finance.
(9) Subject to this Act, the Board shall operate and meet as prescribed.
Functions of Board
5. The Board shall advise the Minister in respect of- ( a ) the contents of regulations made in terms of rhis Act; (b) the formulation of policy pertaining to immigration matters: I C ) the implementation of immigration policy by the Department; ( d ) the reviewing of a decision of the Department in terms of section 8 if and
( e ) such other matters relating to this Act on which the Minister may request when requested by Minister;
advice.
Inter-departmental co-operation
6. i 1 ) The Direcror-General or his or her delegatee shall chair a liaison committee made up of senior employees representing the various departments which have functions relating to ports of entry.
(2 ) The liaison committee shall meet whenever necessary to discuss and agree on co-operation and co-ordination with regard to matters relating to the administration of ports of entry and the movement of goods and persons through ports of entry.
Regulation making
7. ( 1) The Minister shall have the power to make regu1a~ion.s called for. or conducive to. the implementation of this Acr and in making regu1ation.s in terms of tlli.7 Act, the Minister shall-
la) publish and table in Parliament his or her intention of adopting regrr/ation.s specifying their subject matter and soliciting public comments during a period not shorter than 21 calendar days;
( b ) having considered public comments received, publid1 and table in Parliament draft regulations soliciting further comments during a period not shorter than 21 calendar days; and
( c J publish the final regulations together with a summary of comments which have not been accommodated and the reasons for their rejection.
( 2 ) Only subsection (1 )(b! and (c) shall apply in respect of any regulations which rlzis Acr requires to be prescribed from time to time.
(3) The Board may request the Minister t o - (n l reconsider any intended regulations prior to their promulgation; or lb) consider the need to adopt, repeal or amend regularions.
(4) Regulations shall be consistent with this Acr. and shall not disregard the advice of the Bourd and public comments in an arbitrary or capricious manner: Provided that any regulation made in terms of this section shall be tabled within 30 days after its promulgation if Parliament is in session and if Parliament is in recess when the regulation is published, within 12 days after the resumption of the session.
5
10
15
20
25
30
35
30
45
24 No. 23478 GOVERNMENT GAZETTE. 31 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
Adjudication and review procedures
8. (1) Before making a determination adversely affecting a person, the Department shall notify the contemplated decision and related motivation to such affected person and give such person at least 10 calendar days to make representations, after which the Department shall notify such person that either such decision has been withdrawn or 5 modified, or that it shall become effective, subject to subsection (2).
decision of the Department may appeal against it- ( 2 ) Within 20 calendar days of its notification, the person aggrieved by an effective
(a) to the Director-General, who may reverse or modify it within 10 calendar days, failing which the decision shall be deemed to have been confirmed: or I O
(b) within 20 calendar days of modification or confirmation by the Director- General, if any, to the Minister, who may reverse or modify it within 20 calendar days, failing which the decision shall be deemed to have been confirmed. and be final, provided that in exceptional circumstances or when such person stands to be deported as a consequence of such decision- 15 (i) the Minister may extend such deadline; and
(ii) at the request of the Department, the Minister may request such person to post a bond to defray his or her deportation costs, if applicable: or
(c ) within 20 calendar days of modification or confirmation by the Minister. if any, to a Cmrt . which may suspend, reverse or modify it in accordance with 20 its rules.
( 3 ) If not appealed in terms of subsection (2) . a decision of the Deportment is final.
(4) Any person adversely affected by a decision of the Depczrnnenf shall be notified in subject to section 37 of this Act.
writing of his or her rights under this section and otherprescribed matters. and may not 25 be deported before the relevant decision is final.
15) Notwithstanding subsection ( I ) , as soon as notified to the person concerned in terms of subsection (4). the decision of an immigration officer refusing entry into the Replrblic shall be effective for the purpose of subsection ( I ). and final for purposes of deportation, but subject o subsections (2) and (3). 30
ADMISSION AND DEPARTURE
Admission and departure
9. ( I ) Subject to this Act, no person shall enter the Republic at a place other than a port
(2) Subject to rlzis Art. a citizen or a resident shall be admitted. provided that he or she 35 ofelm?.
identifies himself or herself as such in the prescribed manner and. in the case of a resident. the immigration officer records his or her entrance.
( 3 ) No person shall leave the Republic- I n ) unless in possession of a passport, or a certiticate issued by the Deprttmwt
upon upplication in lieu thereof; 40 (6) unless, if he or she is a person under the age of 16 years who does not hold a
passport, he or she is accompanied by his or her parent who holds a pussport in which his or her name was entered in terms of the provisions of the South African Passports and Travel Documents Act. 1994 or on behalf of any government or international organisation recognised by the Government of 45 the Republic; and
( e ) except at a port of entry, unless-
26 No. 23478 GOVERNMENT GAZETTE, 3 I MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
(i) in possession of a certificate by the Department granting permission upon application to leave the Republic at a place other than a port of entry within a certain period not exceeding six months at a time, provided that for good cause an immigration officer may withdraw such permission; or 5
(ii) exempted by the Minister, as he or she deems fit, on recommendation of the Director-General, which exemption may be withdrawn by the Director-General at any time; and
(d ) unless, in the case of a resident, the departure is recorded by an immigration officer. 10
(4) A foreigner may only enter the Republic- ( a ) by producing to an immigration officer his or her passport to be valid for no
less than 30 days after the expiry of the intended stay, and ( b ) if issued with a valid temporary residence, as set out in this Act,
and may only depart as set out in this Act. 15
TEMPORARY RESIDENCE
Temporary residence permits
10. (1) Upon admission, a foreigner may enter and sojourn in the Republic only if in
( 2 ) Subject to this Act, upon application and upon prescribed examination at the porr 20 possession of a temporary residence.
of entry, one of the temporary residences set out in sections 11 to 23 may be issued to a foreigner.
(3) If issued outside the Republic, a temporary residence is deemed to be of force and effect only afrer an admission.
(4) A temporary residence is to be issued on condition that the holder is not or does 25 not become a prohibited or an undesirable person.
( 5 ) For good cause, as prescribed, the Department may attach reasonable individual terms and conditions to a temporary residence.
(6) Subject to this Act, a foreigner may change his or her status while in the Republic.
Visitor’s Permit 30
11. (1) A visitor’s permit may be issued by the Department in respect of a foreigner w h o -
( a ) holds a visa;or ( 6 ) is a citizen of a foreign state prescribed from time to time and provides the
financial or other guarantees prescribed from time to time in respect of his or 35 her deparrure,
provided that such permit- (i) cannot exceed three months and upon application may be renewed by the
Department, or (ii) may be issued by the Department upon application for any period not to 40
exceed three years to a foreigner who has satisfied the Department that he or she controls sufficient available financial resources, which may be prescribed from time to time, and is engaged in the Republic in- (aa) academic sabbaticals; (bb) voluntary or charitable activities; 45 (cc) research; or (dd) other prescribed activities and cases.
(2) The holder of a visitor’s permit may not conduct work.
28 No. 23478 GOVERNMENT GAZE'ITE. 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
(3) An illegal foreigner receiving a visitor's permit shall comply with any terms and conditions which may be prescribed from time to time and provide the prescribed deposit to be forfeited to the Department in case of his or her non- compliance with this Act.
Republic over a period not exceeding three months are requested by the person concerned.
(5) Special financial and other guarantees may be prescribed in respect of the issuance of a visitor's permit to certain classes of foreigners prescribed from time to time.
(4) A visitor's permit may be issued for more than one entry if multiple entries into the 5
Diplomatic permit 10
12. (1) A diplomatic permit may be issued by the Department. or by the Deparmzenr of Foreign Affairs under delegation and in the prescribed manner and form and as directed by the Department, to-
(a) an ambassador, a minister of aforeign state, a career diplomat or consular officer of a foreign government recognized de jure by the South African 15 Government, or a representative of an international organisation pwscribed from time to time, who is accepted by the Minister of Foreign Affairs;
( 6 ) upon a basis of reciprocity, other officials or employees of a foreign government or international organisation contemplated in paragraph (a) ;
( c ) a member of the immediare family of the foreigners contemplated in 20 paragraphs (a) and (b);
( d ) upon a basis of reciprocity, attendants, servants and personal employees of the foreigners contemplated in paragraphs (a) to ( c ) ; and
( e ) other prescribed foreigners who are dignitaries of a foreign state. ( 2 ) The holder of a diplomatic permit may not conduct work. provided that the 25
foreigners referred to in subsection ( l ) ( c ) may combine such permit with a separately issued ~ r ~ r - k permit.
Study permit
13. ( 1 ) A study permit may be issued to a foreigner intending to study in the Republic for longer than three months by- 30
(a) the Department, as prescribed. or. at the option of the applicant. (b) the Deparrrnent through the registrars office or a designated official of an
institution of learning where theforeigner intends to study. provided that such institution- ( i ) has been approved by and is in good standing with the Departrnent; 35
( i i ) certifies that it has received guarantees to its satisfaction that such foreigner's tuition fees will be paid;
(iii) has received the prescribed guarantees that such ,foreigner will have sufficient means to support himself or herself while in the Republic;
(iv) in the case of a minor. provides the name of a person present in South 40 Africa who is, or has accepted to act, as such minor's guardian while in the Republic;
(v) undertakes to provide a prescribed periodic ertitication that such foreigner is satisfactorily performing his or her cumculum of study; and
(vi) undertakes to notify the Department when such foreigner has completed 45 his or her studies, or is no longer performing them satisfactorily.
30 No. 23478 GOVERNMENT GAZETTE. 3 I MAY 2002
Act No. 13,2002 IMMIGRATION CT. 2002
( 2 ) When so requested by, and after consultation with, the Depcrrtrnent of Education, the Department shall determine an ad hoc fee for the issuance of study permits in respect of institutions publicly funded or subsidised.
(3) A study permit does not entitle the holder to conduct work, provided that- fa) a study permit holder may undertake part-time work for aperiod not 5
exceeding the prescribed period, if the permit holder is attending a higher education institution;
(b) the work referred to in paragraph ( a ) may include temporary or full time work during the academic vacation periods.
(c) the Department may, in appropriate cases, authorise the holder of a study 10 permit to conduct work as practical training in a field related to that of his or her studies.
Treaty permit
14. (1) A treaty permit may be issued to a foreigner conducting activities in the
(2) The treaty permit may be issued by- (a) the Department, as prescribed or (hi the Department of Foreign Affairs or the other organ ($Stcue responsible for
the implementation of the treaty concerned under a delegation from the Department, provided that- 20 ( i ) information relating to the failure of suchforeigner to comply with the
terms and conditions of the permit and to depclrr when required is conveyed to the Department;
(ii) the organ of State concerned satisfies the Drpartlnent that. under the circumstances, it has the capacity to perform this function: and 25
( i i i ) the requirements, procedures and forms for the issuance of such permit are prescribed.
Republic in terms of an international agreement to which the Republic is a party. 15
Business permit
15. ( 1 ) A business permit may be issued by the Depurrwnt to a,fi)rrigner intending to establish, or invest in. a business in the Republic in which he or she may be cmployed. 30 and to the members of such foreigner's immediate futnily provided that-
(a ) suchforeigner invests the pre,scrihrcl financial or capital contribution in such business:
( b ) the contribution referred to in paragraph (u ) be part of the intended book value of such business;
(c) a chartered accountant certifies compliance with the provisions of this Act. and
( d ) such foreigner has undertaken to comply with any relevant registration requirement set out in any law administered by the South African Revenue Service.
35
40 (2) The holder of a business permit may conduct work. (3) The Depcfrrnlent may reduce or waive the capitalization requirements referred to
in subsection ( l)(a) for businesses which are prescribed from time to time to be in the national interest or when so requested by the Department of Trade and Industry.
subsection (l)(c) to be renewed within 24 months of the issuance of the permit, and within every two years thereafter.
( 5 ) A business permit may be issued for more than one entry to a person if multiple entries into the Republic by that person over a period of time are necessary for that person to conduct the business in question effectively.
(4) The holder of a business permit shall cause the certification referred to in 45
50
32 No. 23478 GOVERNMENT GAZEITE. 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT. 2002
Crew permit
16. (1) A crew permit may be issued to a foreigner who is a member of the crew of a ship by-
(a) the Department; as prescribed, or (b) the Department through the owner of the ship carrying such member of the 5
crew, provided that such owner- ( i ) is in good standing with the Department;
(ii) has provided the prescribed financial guarantees to the Department to ensure compliance of such foreigner with the provisions of this Act and of his or her permit; and 10
(iii) accepts to be responsible for aprescribed fine, should theforeigner fail to honour the terms of such permit.
( 2 ) A crew permit may be issued on condition that the holder agrees to refrain from
( 3 ) The holder of a crew permit may not conduct work. 15 moving beyond a predetermined area.
Medical treatment permit
17. ( 1) A medical treatment permit may be issued to aforeigner intending to receive medical treatment in the Republic for longer than three months by-
( a ) the Department, as prescribed, or (b) the Deparrment through the registrars office or a designated official of an 20
institution where the foreigner intends to receive treatment, provided that such institution- ( i ) has been approved by and is in good standing with the Deparhzent;
(ii) certifies that it has received guarantees to its satisfaction that such foreigner’s treatment costs will be paid: 25
( i i i ) in the case of a minor, provides the name of a person present in South Africa who is, or has accepted to act. as such minor’s guardian while in the Republic or certifies that such minor will be accompanied by a parent or guardian to the Repddic:
(iv) undertakes to provide a prescribed periodic ertification that such 30 ,foreigner is under treatment: and
(v) undertakes to notify the Deporttnent when suchfhreigner has completed his or her treatment,
( 2 ) When so requested by, and after consultation with. the Depurtmrnt of Health, the Department shall determine an ad hoc fee for the issuance of medical treatment permits 35 in respect of institutions publicly funded or subsidised.
( 3 ) A medical treatment permit does not entitle the holder to conduct work.
Relative’s permit
IS. ( 1 ) A relative‘s permit may be issued by the Department to ajbreigner who is a member of the immediate family of a citizen or a resident. provided that such citizen or 40 rrsidmt provides the prescribed financial assurance.
(a) certified by a charrered accountant. or, at the applicant‘s option, ( 6 ) to be corroborated by relevant documentation to be evaluated by the
Departrnenr that he or she has the means available to support suchforeigner for the requested duration of such permit, either personally or through the 45 contribution of such foreigner.
( 2 ) The holder of a relative’s permit may not conduct work.
Work permit
19. ( 1 ) A quota work permit may be issued by the Department as prescribed to a ,foreigner if the foreigner falls within a category determined by the Minister at least 50 annually by notice in the Gazette after consultation with the Ministers of Labour and
31 No. 23478 GOVERNMENT GAZETTE. 31 .MAY 2002
Act No. 13,2002 IMMIGRATION ACT. 2002
Trade and Industry and as long as the number of work permits so issued for such category does not exceed the quota determined in the notice.
(2) A general work permit may be issued by the Department to aforeigner not falling within a category contemplated in subsection (1) if the prospective employer-
(u ) satisfies the Department in the manner prescribed that despite diligent search 5 he or she has been unable to employ a person in the Rep~rblic with qualifications equivalent to those of the applicant:
(6) produces certification from a chartered uccountant that the terms and conditions under which he or she intends to employ such foreigner. including salary and benefits, are not inferior to those prevailing in the relevant market 10 segment for citizens and residents, taking into account applicable collective bargaining agreements and other applicable standards, as recorded by the Department of Labour, if any, provided that- (i) a copy of such certification shall be conveyed to apescribed office of the
Department of Labour; and 15 (ii) such certification shall lapse if objected to for good cause by such ofice
of the Department of Labour within 15 calendar days of its receipt: (c) has committed to notify the Department when such foreigner is no longer
employed or is employed in a different capacity or role: and (d) has ubmitted acertification from a charrered ~rcco~~ntmt of the job 20
description and that the position exists and is intended to be filled by such foreigner.
(3) A general ~ ~ o r k permit contemplated in subsection ( 2 ) shall lapse if, within six months of its issuance. and within every year thereafter. its holder fails to submit to the Departn~ent certification from his or her employer's chNrtered~lt.(.or/t~fC~tlt that he or she 25 is still employed and of the terms and conditions of his or her employment, including the job description.
(4) Subject to any prescribed requirements. an exceptional skills ~ r w k permit may be issued by the Deptrrrmenr to an individual of exceptional skill5 or qualifications and to those members of his or her immediareJur~rii~ determined by the Depcrrtmenf under the 30 circumstances or by regulation.
( 5 ) An intra-company transfer work permit may be issued by the D ~ p ~ ~ r t m e n f to a jiweigner who is employed abroad by a business operating in the Kepuhlic. in a branch. subsidiary or affiliate relationship and who by reason of his o r her employment is required to conduct ~ w k in the Republic for a period not exceeding two years. provided 35
(a) a chartered accountant acting on behalf of the employer of such ,fbreigner certifies that the employer needs to employ suchjbreigner within the Reptblic and such foreigner's job description:
(b) the employer undertakes that it will take adequate or prescribed measures to 40 ensure that suchfbveigner will at all times comply with the provisions of this Acr. and will immediately notify the Deprtmet?t if i t has reason to believe otherwise: and
(c) the enzployer furnishes the prescribed financial guarantees to defray deporta- tion and other costs should such ,foreigner fail t o dep(r1.t when no longer 45 allowed to sojourn in the Republic.
that-
(6) The holder of an intra-company transfer ~r*nuk permit may conduct w o r k only for the employer referred to in subsection ( 5 ) and in accordance with the job description and other elements contemplated in the certification referred to in subsection ( 5 ) or set out in his or her permit. 50
.
!
36 No. 23478 GOVERNMENT GAZEITE. 31 MAY 2002
Act No. 13,2002 ~~~~~ ~~
IMMIGRATION ACT. 2002
Retired person permit
20. (1) A retired person pennit may be issued for a period exceeding three months to aforeigner who intends to retire in the Republic, provided that the foreigner provides proof that such foreigner has-
(aj the right to a pension or an irrevocable annuity or retirement account which will give such foreigner a prescribed minimum payment for the rest of his or her life from the country of his or her origin; or
(b) a minimum prescribed net worth. ( 2 ) The Department may authorise the holder of a retired person permit to conduct
work under terms and conditions as the Department may deem fit to determine under the circumstances.
(3) A retired person permit may- ( a ) allow its holder to sojourn in the Republic on a seasonal or continuous basis;
(bj not exceed a four-year period, at the expiry of which it may be renewed one or and
more times, subject to subsection (1) .
Corporate permit
21. ( 1 ) A corporate permit may be issued by the Department to a corporate clpplicant to employ foreigners who may conduct work for such corporate upplicunt.
( 2 ) After consultation with the Departments of Labour and of Trade and Industry, the Department shall determine the maximum number of foreigners to be employed in terms of a corporate permit by a corporate applicant. after having considered-
the certification prepared by a chartered accountant on the basis of the relevant prescription or information of the Department of Labour. if any, that at any given time the relevant foreigners are employed on terms and conditions not inferior to those offered to citizens and residenrs or prevailing in the relevant market segment. taking into account collective bargaining agreements and other standards. if any; the undertaking by the corporate applicant that it will- ( i ) take adequate or prescribed measures to ensure that any foreigner
employed in terms of the corporate permit will at any time comply with the provisions of this Act and the corporate permit: and
( i i ) immediately notify the Department if it has reason to believe that such foreigner is no longer in compliance with subparagraph ( iJ above;
the financial guarantees posted in the prescribed amount and form by the corporate applicant to defray deportation and other costs should the corporate permit be withdrawn, or certain foreigners fail to leave the Rep~rblic when no longer subject to the corporate permit; and corroborated representations made by the corporare upplicanr in respect of the need to employforeigners. their job descriptions, the number of citizens or residents employed and their positions. and other prescribed matters.
(3) The Department may withdraw or modify the corporate permit for good and reasonable cause.
(4) In consultation with the Minister of Trade and Industry or Minerals and Energy or Agriculture. as the case may be, the Minister of Labour may designate certain industries. or segments thereof, in respect of which the Government may-
5
10
15
20
25
30
35
40
45
38 No. 23478 GOVERNMENT GAZETTE, 31 MAY 2002
Act No. 13,2002 IMMIGRATION CT, 2002
(a) reduce or waive the requirements of subsection ( 2 ) (d); or (b) enter into agreements with one or moreforeign states and set as a condition of
a corporate permit that its holder- (i) employs foreigners partially, mainly or wholly from such foreign
(ii) remits a portion of the salaries of such foreigners to such foreign
(e) apply this ubsection in respect of foreigners required for seasonal or
(d) waive or reduce the requirement of subsection (2)(c) under special conditions. 10
countries; and 5
countries;
temporary peak period employment; or
( 5 ) The holder of a corporate permit may also employ foreigners in terms of section 19.
Exchange permit
22. An exchange permit may be issued by the Department to ajoreigner- (a) participating in a programme of cultural, economic or social exchange. 15
organised or administered by an organ ofstate, or a public higher education institution, in conjunction with an organ of a foreign state, provided that-
after consultation with the Board, the Minister may delegate the authority to issue such permits to such organ of Stare if such organ of State has satisfied the Minister that it can ensure the compliance of such 20 foreigner with this Act and report to the Deparrment o the stages and the completion of the relevant programme together with other prescribed information; it may be prescribed that, in respect of certain programmes, upon expiration of such permit suchforeigner may not qualify for a sratus until 25 he or she has complied with the requirement of a prescribed period of physical presence in his or herforeign countp or of domicile outside the Republic; or
(b) who is under 25 years of age and has received an offer to conduct work for no longer than one year, provided that- 30
(ii)
(iii)
Asylum
the prospective employer certifies that he position exists. and has committed himself or herself to- (ua) pay such foreigner remuneration which complies with applicable
legal requirements; (bb) provide for the welfare and the needs of suchfimigner while in the 35
Republic under the aforesaid permit; and (cc) report to the Department the failure of theforeigner to comply with
the terms of his or her permit or r o depart when so required; such foreigner may not conduct work other than rrwrk for which the permit is issued; and 40 suchforeigner may not qualify for a temporary or permanent residence permit until he or she has spent two years outside the Republic, which requirement may be waived by the Department in extraordinary circumstances.
45
23. The Department may issue an asylum permit to an asylum seeker subject to the Refugees Act, 1998 (Act No. 130 of 1998), on any prescribed terms and conditions.
40 No. 23478 GOVERNMENT GAZETTE, 3 1 MAY 2002
Act No. 13,2002 ~
IMMIGRATION ACT, 2002
Cross-border and transit passes
24. (1) The Department may issue a cross-border pass with the same effect as a multiple admission visitor's permit to aforeigner who is a citizen of aprescribed foreign countty with which the Republic shares a border and who does not hold a passport but has received a prescribed identity document by the Department and is registered with 5 the Department.
foreign country to make use of the transit facilities at a port of entry. ( 2 ) The Department may issue a transit visa authorising a foreigner travelling to a
PERMANENT RESIDENCE
Permanent residence 10
25. (1) The holder of a permanent residence permit has ail the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship.
( 2 ) Subject to this Act, upon application, one of the permanent residence permits set out in sections 26 and 27 may be issued to a foreigner. 15
(3) A permanent residence permit is to be issued on condition that the holder is not a prohibited person, and subject to section 28 of this Act.
(4) For good cause, as prescribed, the Department may attach reasonable individual terms and conditions to a permanent residence permit.
Direct residence 20
26. Subject to section 25, the Department shall issue a permanent residence permit to
( a ) has been the holder of a work permit, including one issued under a corporate permit. in terms of this Act for five years and has received an offer for permanent employment, provided that- 25 (i) such foreigner submitted a certification from his or her prospective
permanent employer's chartered accountant of the job description and that the position exists and is intended to be filled by such foreigner; and
(ii) the Department of Labour certifies that the terms and conditions of such offer, including salary and benefits, are not inferior to those prevailing in 30 the relevant market segment for citizens and residents, taking into account applicable collective bargaining agreements and other standards;
(i) the Departmenr is satisfied that a good faith spousal relationship exists; and 35
(ii) such permit is issued on condition that it shall lapse if at any time within three years from its application the good faith spousal relationship no longer subsists, save for the case of death;
(c) is a child of a citizen or resident under the age of 21, provided that such permit shall lapse if such foreigner does not submit an application for its 40 confirmation within two years of his or her having turned 2 I years of age; or
a foreigner wh-
( 0 ) is the spouse of a citizen or residenf, provided that-
(dl is a child of a citizen.
Residence on other grounds
27. The Departtnent may issue a permanent residence permit to a foreigner of good and sound character w h o - 45
42 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT. 2001
( a ) has received an offer for permanent employment, provided that- (i) such foreigner submitted a certification from a chartered uccountcrnt
acting on behalf of such foreigner's prospective permanent e t n p l o y ~ that the position exists and that the position and related job description was advertised in the prescribed form and no suitably qualified citizen or resident was available to fill it:
( i i ) the Department of Labour certifies that the terms and conditions of such oiTer, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens or residents, taking into account applicable collective bargaining agreements and other standards. if any:
( i i i ) the application falls within the yearly limits of available permits prescribed from time to time for each sector of industry. trade and commerce, after consultation with the Departtnents of Trade and Industry, Labour and Education; and
(iv) the permit may be extended to such foreigner's spouse and children younger than 21 years of age:
( b ) taking into account any prescribed requirement. has demonstrated to the satisfaction of the Depurtmenr extraordinary skills or qualifications. and to those members of such foreigner's itnrnrdiate f a n d y determined by the Depcwtmenr under the circumstances or by regulation:
(cJ intends to establish a business in the Republic investing in i t the pwscrihed financial contribution to be part of the intended book value as certified by a chartered accountant. and to the members of such ,ji)r.eigtwr's itntnedirrre fn~nily. provided that-
( i ) the Departr?zenr may waive or reduce such capitalisation requirements for businesses prescribed from time to time to be in the national interest or when so requested by the Department of Trade and Industry: and
( i i ) the permit shall lapse if the holder fails to renew such certification within two years of the issuance of the permit. and three years thereafter:
( d l is a refugee referred to in section 27(c) of the Refugees Act. 1998 (Act No. 130 of 19981, subject to any prescribed requirement:
( e ) intends to retire in the Republic, provided that a churtcred ~~cco~mrunr acting on behalf of such foreigner certifies that suchfimigner- (i) has the right to a pension or an irrevocable annuity or retirement account
which will give such foreigner a prescribed minimum payment for the rest of his or her life; or
(ii) has a minimum prescribed net worth: IfJ has provided a certification by a charrered uccowm~nr that he or she ha5 a
prescribed minimum net worth and has paid a prescribed amount to the Departtnent: or
(g ) is the relative of a cirizen or resident within the first step of kinship.
Withdrawal of permanent residence
28. The Deparrrnent may withdraw a permanent residence permit if its holder-
44 No. 23.478 GOVERNMENT GAZETTE, 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
(a) within four years of the issuance of such permit, has been convicted of any of the offences listed in Schedule 1;
(b) has been convicted three times of any of the offences listed in Schedules 1 and 2:
(c) has been absent from the Republic for more than three years, provided that- 5 (i) upon showing good cause and upon prior application the Department
(ii) the time when such holder- may extend this period in specific cases;
(aa) was residing abroad while in the service of the State; (bb) was residing abroad while a representative or employee of a person 10
or association of persons resident or established in the Republic; (cc) was residing abroad while in the service of an international
organisation of which the State is a member; (dd) in the case of the spouse or dependent child of a person referred to
in subitem (aa), (bb) or (cc), such spouse or child was residing with 15 such person; or
(ee) in the case of the spouse or dependent child of a person who is a South African citizen, such spouse or child was residing with such person,
shall not be computed within such period: (iii) the Minister, on recommendation of the Direcror-General. may grant an
exemption from the requirement of residence in respect of certain residents or class of residents;
(iv) the period of absence may only be interrupted by an adrnission and sojourn in the Republic; and 25
(v) the requirement of residence in the Republic shall not affect any foreigner to whom exemption has been granted under section 3 I (2)(h) as a member of a category of persons. unless such foreigner previously entered the Republic or sojourned therein for the purpose of permanent residence under the authority of such exemption; or
( d ) has not taken up residence in the Republic within one year of the issuance of
20
30
such permit.
EXCLUSIONS AND EXEMPTIONS
Prohibited persons
29. ( 1 1 The following foreigners do not qualify for a temporary or a permanent 35 residence permit:
(a ) those infected with infectious diseases as prescribed from time to time: (b) anyone against whom a warrant is outstanding or a conviction has been
secured in the Republic or a foreign countn with which the Republic has regular diplomatic relations in respect of genocide. terrorism, murder, torture, 40 drug trafficking, money laundering or kidnapping;
prescribed manner;
practice of racial hatred or social violence; and 45
association utilising crime or terrorism to pursue its ends.
( c ) anyone previously deported and not rehabilitated by the Depurtment in the
(d ) a member of or adherent to an association or organisation advocating the
( e ) anyone who is or has been a member of or adherent to an organisation or
46 No. 23478 GOVERNMENT GAZETTE. 3 I MAY 2002
Act No. 13,2002 IMMIGRATION ACT. 2002
( 2 ) After consultation with the Director-General. for good cause the Minister may declare a person referred to in subsection (1) not to be a prokibired persorl.
Undesirable persons
30. (1) The followingforeigners may be declared undesirable by the Depc~rtmenr as prescribed
anyone who is or is likely to become a public charge: anyone identified as such by the Mirzisrer after consultation with the Board. or in the case of urgency, by the Mitzister who, in such cases. shall inform the Board as soon as practicable: anyone who has been judicially declared incompetent: an unrehabilitated insolvent: anyone who has been ordered to depart in terms of this Act: anyone who is a fugitive from justice; and anyone with previous criminal convictions without the option of a fine for conduct which would be an offence in the Rephlic. with the exclusion of certain prescribed offences.
(2) Upon application from the affected person, the Deprrrttnerzt may waive any of the grounds of undesirability provided that it reports such decisions to the Mirzisrer and the Bourd. with reasons.
Exemptions
31. ( I ) The following persons or categories of persons are not illeScl1,forrigllers: ( ( I ) B member o fa military force ofaforeigrl s t m which has been granted consent
by the Government of the Republic to enter the Rrp1)lic. while such consent subsists: and
( 0 ) the officers and crew of an official ship of afbreign s t n r e . whilc such ship is in port.
( 2 ) Upon upplication, the Mitzister, as he or she deems fit. after consultation with the Board, may under terms and conditions determined by him or her-
allow a distinguished visitor and certain members of his or her inrtnediclre furnil? and members in his or her employ or of his or her household to be admitted and sojourn in the Republic for a period not exceeding six months. provided that such foreigners do not intend to reside in the Republic permanently; grant a foreigner or a category offoreigtzers the rights of permanent residence for a specified or unspecified period when special circumstances exist which justify such a decision: provided that the Millister may- (i) exclude one or more identifiedforeigrwrs from such categories: and
(ii) for good cause, withdraw such right from aforeigner or a category of
authorise any person or category of persons to enter the Republic at a place other than a port ofentt?, in which case the Deparment shall issue to such person(sl the prescribed written permission or pmvpnrt endorsement. provided that such authorisation may be withdrawn at any time by the Minister; and
foreigners;
I O
75
30
35
40
48 No. 23478 GOVERNMENT GAZETTE, 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION CT, 2002
(d) for good cause, waive any prescribed requirement or form, provided that if such consultation requirement would unduly delay an urgent action, the Minister may inform the Board after the fact of any action taken under this subsection and of the reasons for the urgency.
ENFORCEMENT AND MONITORING 5
Illegal foreigners
32. (1) Any illegal foreigner shall depart, unless authorised by the Department to
( 2 ) Any illegal foreigner shall be deported. remain in the Republic pending his or her application for a status.
Inspectorate 10
33. (1) An inspectorate shall be established through regulations and shall consist of
(2) On the recommendation of the Director-General, the Minister shall appoint the
(3) The inspectorate shall investigate any matter falling within the scope of this Act, 15
such persons, including immigration officers, as may be determined by the Minister.
head of the inspectorate.
subject to the directions of the Minister, and shall in the performance of its functions follow such procedure as may be prescribed.
(4) An immigration officer may, for the purposes of this Act- ( a ) at any time before the commencement or in the course of an investigation
conduct an inspection in loco; 20 ( 6 ) by notice in writing call upon any person who is in possession of or has the
custody of or control over any thing which in the opinion of the Department is relevant to the investigation to produce such thing, and the Department may inspect and retain any thing so produced for a reasonable time; and
( c ) by notice in writing call upon any person to appear before the Department and 25 to give evidence or to answer questions relevant to the subject matter of the investigation,
provided that any of such notices shall specify the time when and the place where the person to whom it is directed shall appear, be signed by an immigration officer, be served by an immigration officer or by a sheriff by delivering a copy thereof to the person 30 concerned or by leaving it at such person’s last known place of residence or business, and shall specify the reason why the article is to be produced or the evidence is to be given.
(5) In the pursuance of this Act, an immigration officer may obtain a warrant t o - ( a ) enter or search any premises for a person or thing or to make inquiries, 35
including the power to- (i) examine any thing found in or upon such premises;
(ii) request from the person who is in control of such premises or in whose possession or under whose control any thing is when it is found, or who is upon reasonable grounds believed to have information with regard to 40 such thing, an explanation or information: and
premises; (iii) make copies of or extracts from any such thing found upon or in such
( 6 ) apprehend an illegal foreigner, subject to section 34( 1); or
50 No. 23178 GOVERNMENT G.4ZETTE. 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT. 1002
(c) after having issued a receipt in respect thereof, seize and remove documen- tation or any other thing which- (i) is concerned with or is upon reasonable grounds suspected of being
concerned with any matter which is the subject of any investigation in terms of this Act; or
(ii) contains, or is on reasonable grounds suspected to contain. information with regard to any such matter,
provided that- (an) any thing so seized shall be returned in good order as soon as possible after the
(bb) a person from whom a book or document has been taken shall be allowed
(6) A warrant referred to in subsection (5) shall be issued by a magistrate of a Court which has jurisdiction in the area where the premises in question are situated. and only if it appears to the magistrate from information on oath that there are reasonable grounds for believing that a thing mentioned in subsection ( 5 ) is upon or in such p'ernises. and shall specify which of the acts mentioned in subsection (5) may be performed thereunder by the person to whom it is issued.
(7) A warrant issued in terms of this section shall be executed by day unless the magistrate who issues the warrant authorises its execution by night at times Lvhich shall be reasonable. and any entry upon or search of any prernises in terms of this section shall be conducted with strict regard to decency and order. including-
(0 ) the right of a person to freedom and security; and ( c ) the right of a person to his or her personal privacy.
purpose of its seizure has been accomplished; and
reasonable access, including the right to make copies at his or her expense.
a person's right to, respect for. and the protection of, his or her dignity;
(8) A person executing a warrant in terms of this section shall immediately before
( ( 1 ) identify himself or herself to the person in control o f the prc~~ni .ve .s . if such person is present, and hand to such person a copy o f the warrant or. if such person is not present. affix such copy to a prominent place on the prcwi.\c.s: and
(h ) supply such person at his or her request with particulars regarding his or hcr authority to execute such a warrant.
(9) ( t r l An immigration officer may. without a warrant. enter upon any p r . c ~ r ~ i . w s , other than a private dwelling, and exercise the powers referred to in subsection ( S ) ( a ) and f c)-
( i ) if the person who is competent to do so consents to such cntry. search. seizure
( i i ) if he or she upon reasonable grounds believes that-
commencing with the execution-
and removal: or
faa) the required warrant will be issued to him or her i n terms o f subsection
fbhl the delay caused by the obtaining of any such warrant would defeat the
(b ) Any entry and search i n terms of paragraph ( ( 1 ) shall be executed by day. unless the execution thereof by night is justifiable and necessary.
(10) l a ) Any person who may on the authority of a warrant issued in terms of subsection (5). or under the provisions of subsection (9). enter upon and search any pretnises. may use such force as may be reasonably necessary to overcome resistance to such entry or search: and
fb) No person may enter upon or search any pre~uises unless he or she has audibly demanded access to the premises and has notified the purpose of his or her entry. unless such person is upon reasonable grounds of the opinion that any thing may be destroyed
( 5 ) if he or she were to apply for such warrant: and
object of the entry, search, seizure and removal.
5
10
'0
95
30
40
45
50
~-
52 No. 23478 GOVERNMENT GAZETTE, 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT. 2002
or a person put at risk of bodily harm if such access is first demanded and such purpose is first notified.
(1 1) If, during the execution of a warrant or the conducting of a search in terms of this section, a person claims that a thing found on or in the premises concerned contains privileged information and refuses its inspection or removal, the person executing the warrant or conducting the search shall, if he or she is of the opinion that the thing contains information which is relevant to the investigation and that such information is necessary for the investigation, request a person designated by a Court which has jurisdiction to seize and remove that thing for safe custody until a Court has made a ruling on the question whether the information concerned is privileged or not.
(1 2 ) A warrant issued in terms of this section may be issued on any day and shall be in force until-
( a ) it is executed; ( b ) it is cancelled by the person who issued it or, if such person is not available.
( c ) the expiry of one month from the day of its issue; or ( d ) the purpose for the issuing of the warrant has lapsed,
by a person with similar authority;
whichever may occur first. (13) In consultation with the Minister and through diplomatic hannels, the
Department may obtain permission from the relevant authority of a foreign country to receive evidence or gather information in or from that country.
(14) When exercising powers under this section, an immigration officer shall clearly identify him or herself as such by means of adequate identification.
Deportation and detention of illegal foreigners
34. (1) Without need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall. irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at the place under the control or administration of the Deparrment determined by the Director-General, provided that the foreigner concemed-
(a) shall be notified in writing of the decision to deport him or her and of his or her right to appeal such decision in terms of this Act;
( b ) may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner;
( c ) shall be informed upon arrest or immediately thereafter of the rights set out in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands;
f d ) may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days, and
( e ) shall be held in detention in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights.
5
10
15
20
25
30
35
40
54 No. 23478 GOVERNMEKT GAZETTE. 3 i MAY 2002
Act No. 13,2002 IMMIGRATION ACT. 2002
( 2 ) The detention of a person in terms of this Act elsewhere than on a ship and for purposes other than his or her deportation shall not exceed 48 hours from his or her arrest or the time at which such person was taken into custody for examination or other purposes. provided that if such period expires on a non-court day it shall be extended to four p.m. of the first following court day. 5
(3) The Department may order aforeigner subject to deportatiou to deposit a sum sufficient to cover in whole or in part the expenses related to his or her deporrarinn. detention, maintenance and custody and an officer may in the prescribed manner enforce payment of such deposit.
shall be guilty of an offence and liable on conviction to a tine not exceeding R20 000 or to imprisonment not exceeding 12 months.
(4) Any person who fails to comply with an order made in terms of subsection ( 3 ) 10
( 5 ) Any person other than a citizen or a resident who having been- (cz) removed from the Republic or while being subject to an order issued under a
law to leave the Republic, returns thereto without lawful authority or fails to 1 i comply with such order: or
entered the Republic, (b ) refused admission, whether before or after the commencement of this Act. has
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months and may, if not already in detention. be arrested without 70 warrant and deported under a warrant issued by a Court and, pending his or her removal. be detained in the manner and at the place determined by the Director-General.
(6 ) Any illegal foreigner convicted and sentenced under this Act may be deported before the expiration of his or her sentence and his or her imprisonment shall terminate at that time. -_ 7 i
(7) On the basis of a warrant for the removal or release o f a detained i1legcrlj)reigner. the person in charge of the prison concerned shall deliver such foreigner to that immigration officer or police officer bearing such warrant. and if such j)ruigner is not released he or she shall be deemed to be i n lawful custody while in the custody of the immigration officer or police officer bearing such warrant. 3 0
(8) A person at aporr of enrry who has been notified by an immigration officer that he or she is an illegal foreigner or in respect of whom the immigration officer has made a declaration to the master of the ship on which such,foreigner arrived that such person is an illegal foreigner shall be detained by the master on such .ship and. unless such m m e r is informed by an immigration officer that such person has been found not to be an 35 illegal foreigner, such master shall remove such person from the Repuhlic. provided that an immigration officer may cause such person to be detained elseLvhere than on such ship, or be removed in custody from such ship and detain him or her or cause him or her to be detained in the manner and at a place determined by the Dituctor-General.
while detained as contemplated in that subsection. be deemed to be in the custody of the master of such ship and not of the immigration officer or the Departtnenr, and such muster shall be liable to pay the costs of the detention and maintenance of such person while so detained if the master knew or should reasonably have known that such person was an illegal foreigner. provided that- 35
(9) The person referred to in the preceding subsection shall. pending removal and 10
56 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
if such master fails to comply with the provisions of that subsection, or if required to pay such costs, such master or the owner of such ship shall forfeit in respect of every person concerned a sum fixed by the immigration officer, not exceeding an amount prescribed from time to time; the immigration officer may, before such person is removed from such ship, require the master or the owner of such ship to deposit a sum sufficient to cover any expenses that may be incurred by the Department in connection with the deportation, detention, maintenance and custody of such person, if there are grounds to believe that the master knew or should reasonably have known that such person was an illegal foreigner; if such person is not removed from the Republic on the ship on which he or she was conveyed to the Republic, except by reason of not being an illegal foreigner, and if the master knew or should have known that such person was an illegal foreigner, the owner of that ship shall at the request of an immigration officer convey that person, or have him or her conveyed, free of charge to the State to a place outside the Republic, and any person, other than an immigration officer, charged by the Department with the duty of escorting that person to such place, shall be deemed to be an immigration officer while performing such duty; and if the o ~ ~ n e r of such ship fails to comply with the provisions of this section. he or she shall forfeit in respect of each such person a sum fixed by the immigration officer, not exceeding an amount prescribed from time to time.
( I O ) A person who escapes or attempts to escape from detention imposed under this Act shall be guilty of an offence and may be arrested without a warrant.
Ships
35. ( 1) Save for extraordinary circumstances necessitating otherwise, no master shall cause his or her ship to enter the Republic by landing or shoring at any place other than a port cf'entl?..
( 2 ) An immigration officer or other authorised person employed by the Department may-
( a ) board any ship which is entering or has entered into any port and for good cause prohibit or regulate disembarkation from, or the offloading of. such ship in order to ascertain the status or citizenship of its passengers; and
( b ) request the person in control of a port of ent? or any person acting under his or her authority to order the master to moor or anchor his or her .ship in such port at such distance from the shore or landing place or in such position as he or she may direct.
(3) The master of a ship entering a porr of entry upon demand shall deliver to an immigration officer-
( a ) a list stating- ( i ) the names of all passengers on board the ship, classified according to
(ii) such other details prescribed from time to time; their respective destinations; and
( b ) a list of stowaways. if any have been found;
5
10
15
30
25
30
35
40
t
58 No. 23478 GOVERNMENT GAZE7TE. 3 I MAY 2002
Art Nu. 13,2002 IMMIGRATION ACT, 2002
( c ) a list of the crew and all other persons, other than passengers and stowaways,
( d ) a return. under the hand of the medical officer of that ship or. if there is no such employed. camed or present on the ship; and
medical officer, under the hand of the muster himself or herself, stating- (i) any cases of disease, whether infectious or otherwise, which have 5
( i i ) the names of the persons who have suffered or are suffering from such
(iii) details of any birth or death which occurred upon the voyage between
( iv) any other prescribed matter or event,
occurred or are suspected to have occurred upon the voyage;
disease;
such port and a previous port: and I O
provided that such immigration officer may- (no) exempt from the requirements of this subsection the ma.ster of a ship destined
for any other port in the Republic, subject to compliance with the duty to deliver such lists or return at such port and with any directive such 15 immigration officer may issue to the master; and
authorise such addition or deletion. (661 if satisfied that a name should be added to or deleted from any of such lists,
(4) If a ship arrives at apor t o fen tn with a passenger on board bound for a destination outside the Republic who is not on board when the ship leaves such port and has not been 70 admitted. the rnasrer or the obt'ner of that ship shall forfeit a sum fixed by the immigration officer within a prescribed limit.
( 5 ) An immigration officer may require the master of a ship to muster the crew of such ship o n the amval of such ship in any port cflentq and again before i t leaves such port.
( 6 ) The competent officer of customs at any harbour may refuse to give to the rnnster 25 of any . s h i p clearance papers to leave that harbour unless he or she has complied with the provisions of this Act and produced a certificate of an immigration officer to that effect.
(7) A rnnster shall ensure that any foreigner conveyed to a port of e n r n for purposes of traielling to aforeign c o m t n holds a transit ltisa. if required.
Monitoring entries in Republic and exits 30
36. ( 1 ) The Depnrrmenr shall control the entry and exit of people throu, .h the horders of the R e p r h l i c in order to ensure compliance with t h i s Act. and may do so with the assistance of other organs of State.
( 2 ) The Deparmrnl may receive a delegation from the South African Revenue Service or the Commissioner therefor, the Depurtrnerzt of Safety and Security. the 35 Drpr-frnenr of Defence or the Deparrmenr of Finance enabling and mandating i t to exercise powers and perform functions exercised or performed under any law by any of such Deptrrtnwnts relating to the control of movement of people or goods across the borclrr-s. including ports of entry.
of the Doprrrtrnerlr allocated to the control of entry and exit be placed under the control of the Mi/lr.ster of Defence to be deployed as determined by the Prrsidrrlr in terms of section 301 of the Constitution.
13) By proclamation. the President may order that certain assets and human resources 40
60 No. 23478 GOVERNMENT GAZERE, 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION CT, 2002
IMMIGRATION COURTS
Immigration Courts
37. (1) Every magistrates’ court is an Immigration Court for the purposes of this Act and shall have jurisdiction on any matter arising from the application of this Act, including, but not limited to- 5
(a) the review of decisions of the Department; (6) any legal proceedings against the Department; and ( c ) any matter concerning status.
( 2 ) Any legal proceedings arising from the application of rhis Act shall be dealt with as soon as is reasonably possible and the Courts must ensure that such proceedings are 10 finalised without any unavoidable delay.
The Rules Board for Courts of Law established in terms of the Rules Board of Courts of Law Act, 1985(Act No. 107 of 1985), shall as soon as reasonably possible after the commencement of this Act make rules aimed at facilitating the adjudication of any matter arising from this Act in a simplified and xpeditious manner. 15
DUTIES AND OBLIGATIONS
Employment
38. ( 1 ) No person shall employ- (a) an illegal foreigner; ( b ) ajoreigner whose status does not authorise him or her to be employed by such 20
( c ) a foreigner on terms. conditions or in a capacity different from those
( 2 ) An employer shall make a good faith effort o ascertain that no illegal foreigner is
person; or
contemplated in suchforeigner’s status.
employed by him or her or to ascertain the status or citizenship of those whom he or she 25 employs.
(3) If i t is proven, other than by means of the presumption referred to in subsection (5) . that a person was employed in violation of subsection ( I ) , i t shall be presumed that the emplo~er knew at the time of the employment that such person was among those referred to in subsection ( l ) , unless uch employer proves that he or she- 30
(a) employed such person in good faith; and (b ) complied with subsection (21, provided that a stricter compliance shall be
required of any employer who employs more than five employees or has been found guilty of a prior offence under this Act related to this section.
(4) An employer employing aforeigner shall- 35 ( a ) for two years after the termination of such foreigner’s employment, keep the
(b) report to the Department- prescribed records relating thereto: and
(i) the termination of suchforeigner’s employment; and (ii) any breach on the side of theforeigner of his or her status. 40
( 5 ) If an illegal foreigner is found on any premises where a business is conducted. it shall be presumed that suchforeigner was employed by the person who has control over such premises. unless prima facie evidence to the contrary is adduced.
62 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 1002
Act No. 13.2002 IMMIGRATION ACT, 2002
Learning institutions
39, ( 1 ) No learning institution shall knowingly provide training or instruction to- ( a ) an illegal foreigner; (b) aforeigner whose status does not authorise him or her to receive such training
( e ) a foreigrzer on terms or conditions or in a capacity different from those
(2) If an illegal foreigner is found on any premises where instruction or training is provided. i t shall be presumed that suchforeigner was receiving instruction or training from. or allowed to receive instruction or training by, the person who has control over 10 such premises. unless prima facie evidence to the contrary is adduced.
or instruction by such pers ; or 5
contemplated in such foreigner’s sratus.
Accommodation
40. ( 1 ) Any business offering overnight accommodation shall make a good faith effort to identify its customers as citizens or status holders and shall report in the pl-escribed form to the Departnwrzf any failure to effect such identification. 15
(2) When subsection ( 1 ) is not complied with and an illegalforeigner is found on any premises referred to in that subsection, it shall be presumed that such illegal forejgrler was harboured by the person who has control over such premises. unless prima facie evidence to the contrary is adduced.
Identification 20
Aiding and abetting illegal foreigners
42. ( I ) Subject to [his Act, and save for necessary humanitarian assistance. no person. shall aid. abet. assisenable or in any manner help- 30
( r r i an illegal foreigner; or (01 a,forc.igizer in respect of any matter, conduct or transaction which violates
suchjoreigner’s status. when applicable, including but not limited to-
( i ) providing instruction or training to him or her. or allowing him or her to 35
( i i ) issuing to him or her a licence or other authorisation to conduct any business
( i i i ) entering into an agreement with him or her for the conduct of any business or
( iv) conducting any business or carrying on any profession or occupation in
receive instruction or training;
or to carry on any profession or occupation:
the carrying on of any profession or occupation: 40
cooperation with him or her;
64 No. 23478 GOVERNMENT GAZETTE. 3 I MAY 2002
Act No. 13.2002 IMMIGRATION ACT, 2002
(v) assisting, enabling or in any manner helping him or her to conduct any
(vi) obtaining a licence or other authority for him or her or on his or her behalf to
(vii) doing anything for him or her or on his or her behalf in connection with his or S
(vi i i ) harbouring him or her, which includes providing accommodation: or
business or carry on any profession or occupation;
conduct any business or to carry on any profession or occupation:
her business or profession or occupation;
( ix) letting or selling or in any manner making available any immoveable property in the Republic to him or her.
(2) In any criminal proceedings arising out of this section, it is no defence to aver that 10 the status of the foreigner concerned, or whether he or she was an illegal foreigner, was unknown to the accused if it is proved that the accused ought reasonably to have known the m t u s of the foreigner, or whether he or she was an illegal foreigner.
Obligation of foreigners
43. A,foreigner shall- 15 ( [ I ) abide by the terms and conditions of his or her status. including any terms and
conditions attached to the relevant permit by the Department upon its issuance. extension or renewal: and
(b ) depart upon expiry of his or her status.
i f
Organs of State
44. When possible. any organ of State shall endeavour to ascertain the status or ciri:enship of the persons receiving its services and shall report to the Department any i l l r g d forrigtwr, or any person whose status or citizenship could not be ascertained. advising through public notices or directly the person concerned of such reporting practice. provided that such requirement shall not prevent the rendering of services to 15 which illegrrl foreigners and foreigners are entitled under the Constitution or any law. inchdins the law of contract.
Other institutions
45. Prescribed institutions or persons other than organs of State may be required by regulation to endeavour to ascertain the status or citizenship of the persons with whom 30 they enter into commercial transactions. as prescribed, and shall report to the Depurtrmwt any illegal.foreigner. or any person whose status or citi:enship could not be ascertained. provided that such requirement shall not prevent the rendering of services or performance to which illegul foreigners and foreigners are entitled under the Constitution or any law. including the law of contract. 3s
66 No. 23178 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13, 2002 IMMIGRATION ACT, 2002
MISCELLANEOUS
Immigration practitioners
46. (1) No one, other than an attorney, advocate or immigration practitioner, may conduct the trade of representing another person in the proceedings or procedures flowing from this Act. 5
(2) In order to be registered on a roll of immigration practitioners to be maintained by the Department. an immigration practitioner shall apply in the prescribed manner. producing evidence of the prescribed qualifications and paying any prescribed registration fee.
withdraw the registration of an immigration practitioner who has contravened this Act or any prescribed duty.
(3) After affording him or her a fair opportunity to be heard. the Departnwnt may 10
Internal monitoring and controls
47. ( 1) The Departrnent shall set up an internal anti- corruption unit charged with the task of preventing, deterring, detecting and exposing any instance of corruption. abuse 15 of power, xenophobia and dereliction of duty by a person employed in the Department, provided that such unit shall-
( ( 1 ) not oust the jurisdiction or the investigative authority of any other organ of Stare; and
( (3 ) comprise specialized members seconded from time to time and on a rotating 20 basis by the National Commissioner of the South African Police Service.
( 2 ) The Director-General shall report to the Minister and inform the Board annually
( a ) measures and proposals aimed at increasing the efficacy, efficiency and
( b ) statistical data relating to the implementation of this Act and the Departrnent, ( 3 ) The Board shall utilise the information referred to in subsection ( 2 ) in its annual
on-
cost-effectiveness of the Department; and 25
report to Parliament.
Foreigners erroneously allowed to enter Republic
48. No illegal,foreigner shall be exempt from a provision of rhis Acr or be allowed to 30 sojourn in the Repb l i c on the grounds that he or she was not informed that he or she could not enter or sojourn in the Republic or that he or she was admitted or allowed to remain in the Republic through error or misrepresentation. or because his or her being an illegal foreigner was undiscovered.
OFFENCES 35
Offences
39. ( 1 ) ( a ) Anyone who enters or remains in 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.
be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding nine months.
( 2 ) Anyone who knowingly assists a person to enter 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 one year. 45
0 7 ) Any illegal foreiper who fails to depart when so ordered by the Department. shall 30
68 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 1002
Act No. 13,2002 IMMIGRATION CT, 2002
(3) Anyone who 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 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 offences by imprisonment not exceeding three 5 years without the option of a fine.
(4) Anyone who intentionally facilitates an illegal foreigner to receive public services to which such illegal foreigner is not entitled shall be guilty of an offence and liable on conviction to a fine.
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 terms of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years. provided that if such civil servant is employed by the Department 15 such offence shall be punishable by imprisonment not exceeding three years without the option of a fine.
(6) Anyone failing to comply with one of the duties or obligations set out under sections 42 to 46 of this Act shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding 18 months. 20
(7) Anyone participating in a conspiracy of two or more persons to conduct an activity intended to violate this Act repeatedly shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years, provided that i f 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 years without the option of ;I 3-5 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 conviction to a fine or to imprisonment not exceeding one year. and shall be suspended from the relevant professional association for a period not exceeding two years. 30
(9) Anyone. other than a civil servant. who produces a document purporting 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 exceeding two years.
( I O ) Anyone who 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 35 guilty of an offence and liable on conviction-
( 5 ) Any civil servant who provides false or intentionally inaccurate or unauthorised 10
( a ) to a tine or to imprisonment not exceeding 18 months: or ( h ) if subsequently such officer in fact contravenes this Act or breaches his or her
duties. to a fine or to imprisonment not exceeding three years. ( I1 ) Anyone p i l t y of the offence contemplated in section 37( I O ) shall be liable on 30
( I ? ) A Court may make an order as to costs in favour of the Department to the extent conviction to a fine or to imprisonment not exceeding six months.
necessary to defray the costs referred to in section 37(3) against-
70 No. 23478 GOVERNMENT GAZETTE, 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
( a ) any illegal foreigner referred to in subsection 37(3); (b) any person who contravened section 45; ( c ) any person who conveyed into the Republic a foreigner without the required
transit visa; or
which order shall have the effect of a civil judgment of that court.
Administrative offences
50. (1) Any foreigner who leaves the Republic after the expiry of his or her permit shall be liable to an administrative fine of a prescribed amount not exceeding R3000, 10 which fine shall be imposed by the Department on detection of the overstay and exacted when such foreigrzer is admitted or makes an application with the Department.
(2) Anyone who through negligence produces an incorrect certification contemplated by this Act shall be liable to an administrative fine of aprescribed amount not exceeding R8000. which fine shall be imposed by the Department. 1s
(3) Any owner or master of a ship who through negligence contravenes the provisions of section 35 shall be liable to an administrative fine of a prescribed amount not exceeding R10 000, which fine shall be imposed by the Department.
TRANSITIONAL PROVISIONS
Transitional definitions 20
51. In respect of sections 52 and 53 the following additional or different definitions
(i) “prescribe” means to provide through regulations and “prescribed” has a
(ii) “previous Act” means the Aliens Control Act. 199 1 (Act No. 96 of 1991 ): 25 ( i i i ) “published” means published in the Government Guzette; and (iv) “regulations” means both general and specific rules adopted by the Mir~ister
shall apply, unless the context requires otherwise:
correspondent meaning:
and published.
Functions of Department and Board
52. (I) Until the Board is duly constituted and operational, any regulation required in 30
(2) Subject o this Act, any regulations adopted under the previous Act shall remain in
(3) The Board shall be convened within 90 days of the coming into force of this Act.
terms of this Act shall be prescribed.
force and effect until repealed or amended.
Existing Permits 35
53. ( 1) Any permanent residence permit validly issued in terms of the previous Act shall be deemed to have been issued in terms of, and in compliance with. this Act.
( 2 ) Any permit issued in terms of the previous Act for a determined period shall continue in force and effect in accordance with the terms and conditions under which it was issued. but may only be renewed in terms of this Act, provided that- 40
(i) the Departrnent may waive the requirement to submit a new application, and (ii) for good cause the Department may authorise a permit to be renewed in terms
of the previous Act.
I
i
72 No. 23478 GOVERNMENT GAZETTE, 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
(3) Any exemptions for an undetermined period granted in terms of section 28(2) of the previous Act shall be deemed a permanent residence permit for the purposes of this Act. and any exemption granted for a determined period shall continue in force and effect in accordance with the terms and conditions under which it was issued.
effect in accordance with the terms and conditions under which they were issued, but may not be renewed.
(4) Permits issued under section 41 of the previous Act shall continue in force and 5
Repeal of laws
54. (1) The laws mentioned in Schedule 3 are hereby repealed or amended to the extent set out in its third column. 10
( 2 ) Anything done under the provisions of a law repealed by subsection (1) and which could have been done under this Act shall be deemed to have been done under this Act.
Short title and commencement
55. (1) This Act shall be referred to as the Immigration Act, 2002, and shall come into force and effect on a date determined by the President by proclamation in the 15 Government Gazette.
consultation with the Minister for Justice and Constitutional Development. ( 2 ) The date of coming into force and effect of section 37 shall be determined in
13 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION ACT, 2002
Schedule 1
Offences referred to in section 28(a) and (b) of this Act
Treason against the Republic Murder Rape, other than statutory rape Indecent Assault Robbery Kidnapping Assault when a dangerous wound is inflicted Arson Any conspiracy, incitement or attempt to commit an offence referred to in this
Schedule
i
76 No. 23478 GOVERNMENT GAZEITE, 3 1 MAY 2002
Act No. 13,2002 IMMIGRATION CT, 2002
Schedule 2
Offences referred to in section 28@) of this Act
Corruption Sedition Public violence Culpable Homicide Bestiality Malicious injury to property Breaking and entering any premises Theft Receiving stolen property knowing it to have been stolen Fraud Forgery or uttering a forged document knowing it to have been forged Offences relating to coinage Any offence relating to the illicit possession, conveyance or supply of dependence-
Any conspiracy. incitement or attempt to commit an offence referred to in this
Any offence the punishment of which may be a period of imprisonment exceeding six
producing drugs
Schedule
months without the option of a fine
78 No. 13478 GOVERNMENT GAZETTE. 31 MAY 2002
Act No. 13,2002 IMMIGRATION CT, 2002
Schedule 3
Laws repealed or amended
No and pear of law
Act No. 96 of 1991
Act No. 75 of 1995
Act No. X8 of 1995
;hart Title
\liens Control Act. 199 1
diens Control Amendment ict. 1995
;outh African Citizenship ict. 1995
3xtent of the repeal or lmendment
"he whole repealed
The whole repealed
!. Amendment of section 1 ;ection I of the South African litizenship Act. 1995 (herein- t ter referred to as "the p r i m .ipd Acr") is hereby Imended by the addition of he following detinition:
80 No. 23478 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13.2002
Vo and year of law
k t No. 130 of 1998
IMMIGRATION ACT, 2002
Short Title
Refugees Act, 1998
Extent of the repeal or amendment
1. Amendment of section 1 Section 1 of the Refugees Act. 1998 (hereinafter referred to as “the principal Act”), is hereby amended by- (a) the addition or substitution of the following definitions: “- “Board” has the meaning assigned thereto in the Immi- gration Act of 2002 - “Court” has the meaning assigned thereto in the Immi- gration Act of 2002 - “prescribed” has the mean- ing assigned thereto in the Immigration Act of 2002:” (b) the deletion of the follow- ing definitions: - “Aliens Control Act”; - “Appeal Board”.
2. Amendments to principal 4ct (1 ) The principal Act is hereby amended by substitut- ing- (a ) the word “Minister“ with the words “Minisre6 acting after consultation with the Bourd“, where such word occurs in sections 7[ 11 and 10; Ib) the word “Minister” with the word “Department” where such word occurs in sections 22 and 23: (2) The principal Act is hereby amended by delet- mg-
32 No. 13478 GOVERNMENT GAZETTE. 3 1 MAY 2002
Act No. 13, 2002
No and year of law
IMMIGRATION ACT, 2002
Short Title Extent of the repeal or amendment
( a ) the words “and Appeal Board” and the word “both“ where they occur in sections 15, 16. 19 and 20; and ( b ) the words “or Appeal Board” where they occur in sections 17 and 18. (3) The principal Act is hereby amended by deleting sections 12. 13 and 14 and by substituting section 26 with the following section: “Appeals 26. [(l) Any asylum seeker may lodge an appeal with the Appeal Board in the manner and within the pe- riod provided for in the rules if the Refugee Status Determination Officer has rejected the application in terms of section 24(3)(c). (2) The Appeal Board may after hearing an appeal con- firm, set aside or substitute any decision taken by a Refugees Status Determina- tion Officer in terms of sec- tion 24(3)(c). (3) Before reaching a deci- sion, the Appeal Board may-] An Asylum seeker may lodse an appeal with a Court in the manner and within the period provided for in the rules. and such Court shall hear and de- termine any relevant question of law or fact in ternis o f this Act provided that. before reaching a decision. such court may-
84 No. 23478 GOVERNMENT GAZETTE, 3 1 MAY 2002
Act No. 13,2002
i o and year of law
IMMIGRATION ACT, 2002
jhort Title Extent of the repeal or amendment
‘a) invite the UNHCR repre- sentative to make oral or writ- ten representations; (b) refer the matter back to the Standing Committee for further inquiry and investiga- tion; (c) request the attendance of any person who, in its opin- ion, is in a position to provide the [Appeal Board] with relevant information; (d) of its own accord make further inquiry or investiga- tion: ( e ) request the applicant to appear before it and to pro- vide any such other informa- tion as it may deem necessary. [(4) The Appeal Board must allow legal representation upon the request of the ap- plicant.]” 3. Implementation The amendments to rhe prim cipal Acr shall come into force and effect at a date pre- scribed by the Mirisrer. pro- vided that the Minisrer may determine different dates for different provisions thereof ensuring that the relevant pro- visions come into force only after the Courrs have been partially or fully established.