Foreigners who stay longer in South Africa than their visa allows face much harsher sanctions under a new immigration law, which lawyers say is punitive and unconstitutional.
The current law fines foreigners who outstay their visas.
An amendment to the Immigration Act was gazetted in December and is due to be fast-tracked to become law. It now proposes that a person who overstays their visit to the country, even by one day, cannot get a visa to re-enter South Africa and cannot apply for a residence permit to live here.
They could also be banned for up to five years and appealing any decision or explaining what led to the transgression can take up to 18 months.
This sanction applies to first-time offenders as well.
The proposed law’s proponents argue that fines are not a sufficient deterrent to foreigners who overstay their visas.
Leon Isaacson, managing director of Global Migration SA, said the proposed law was not flexible and did not allow people who overstayed due to an emergency, illness, or by accident to be treated differently to visitors who stayed too long on purpose.
He said last month some Americans could not return home due to heavy snow in the US that led to a cancellation of flights for four days. This meant the Americans remained for four days longer than intended and overstayed their visas.
Isaacson said the lack of flexibility in the law was unconstitutional as it did not allow for a fair administration of justice, which is a constitutional right.
“While there may be understandable reasons for wanting to tighten up on abuses, clearly the measures have been excessive,” Isaacson said.
He said one of the contributing factors to people overstaying their visits to South Africa has been the uncertainty surrounding new visa requirements and the inordinately long time taken for the visa application process, which can take eight to 12 months to obtain a response.
The Department of Home Affairs did not respond to queries.