“Undesirable status” and can you appeal it?
What does “undesirable status” (V-List Code K) mean?
As outlined in our Waiver Letter post, since mid-2014, individuals who overstay their visas in South Africa and depart while their visas are expired are designated as having “undesirable status” and consequently receive a ban from returning to South Africa.
The duration of the ban depends on the length of the overstay: overstaying by less than 30 days results in a one-year ban1, while overstaying for longer than 30 days incurs a five-year ban.2
Upon departure from South Africa with an expired visa and subsequent receipt of an overstay ban, individuals are classified as “undesirable persons” under section 30 of the Immigration Act (Act 13 of 2002).
Undesirable persons are logged into the Department of Home Affairs‘ (“DHA”) Visa Stop List (“V-List”) under “Code K”.
Upon being declared “undesirable,” individuals should receive a “Declaration of Undesirability” (Form 19), which provides details regarding the ban. It is imperative to retain this document for future reference.
PLEASE NOTE:
Although the DHA has issued a blanket visa extension (“concession”) for foreigners in South Africa whose current visas have expired and are awaiting the outcome of an application for a new/extended visa or waiver, we have seen cases where foreigners ostensibly covered by this concession are still being declared “undesirable” upon departure from South Africa.
Although this should not occur (and usually only happens because of an oversight by the Immigration Official), affected individuals will still need to appeal their undesirable status as explained below.
If you believe you are covered by this concession and have been mistakenly declared “undesirable”, please contact us for assistance with an appeal.
How does “undesirable status” affect you?
Once categorised as an “undesirable person,” re-entry to South Africa is prohibited until you acquire a Waiver Letter confirming the lifting of your ban.
As an “undesirable person,” access to South Africa via any land borders is restricted, and airlines are instructed by the DHA to deny boarding to individuals deemed “undesirable.” This prohibition extends to all flights destined for South Africa, including those with transit stops. Even if you have no intention of disembarking the plane or passing through Immigration, you will still be barred from boarding while classified as an “undesirable person.”
It is essential to acknowledge these restrictions and take appropriate steps to resolve your ban status before attempting to travel to South Africa. Obtaining a Waiver Letter is crucial to lifting the ban and facilitating your lawful re-entry into the country.
What are your options when you have undesirable status?
For individuals facing an overstay ban and undesirable status declared by the DHA, two options exist.
The first option is to passively wait out the ban period. Once the ban period concludes, individuals can apply for a Waiver Letter and subsequently return to South Africa.
However, many individuals find waiting out the ban period impractical, particularly when faced with a lengthy ban and existing ties to South Africa such as family, work, or business connections. Fortunately, there is an alternative option available for those unwilling to wait out their ban.
Individuals who seek to contest their overstay ban have the option to appeal it. Appeals can be pursued through two channels, although they are functionally similar.
The first channel involves appealing the ban directly to the Director-General of the DHA within 10 working days (equivalent to 2 weeks) of receiving the ban.
The second channel allows for appeals to be submitted to the Minister of Home Affairs at any point following the receipt of the ban, without the constraint of the initial 10-working-day window. Both avenues provide opportunities to contest and potentially overturn the overstay ban.
How does an Overstay Appeal work?
Please contact us if you have received an Overstay ban. We will ask you some questions and request some supporting documentation from you in order to confirm the exact details of your ban and assess your chances of a successful appeal.
We will ask you for the following documents:
- A copy of your current passport bio page.
- A copy of the bio page of the passport you were using when you received the ban (if different from your current passport).
- A copy of the entry and exit stamps in your passport from when you received the ban.
- A copy of the “Declaration of Undesirability” (Form 19) letter you were given when banned (if you are still in possession of it).
Once we have looked over your documents and obtained all relevant information from you regarding the circumstances leading to your Overstay ban, we will advise you on the exact steps forward.
In general, this involves us preparing written representations on your behalf, comprehensively detailing the reason(s) for your overstay and making strong arguments as to why your ban should be overturned. Once the written representations have been finalised and you have signed off on their accuracy, they will be submitted to the DHA along with the necessary supporting documents.
If the appeal is successful, we will receive a confirmation letter from the DHA, which will be sent to you once any outstanding fees have been settled.
NOTE: The processing time for Overstay Appeals varies, depending on the capacity of the DHA at the time of submission. The average processing time is between 6-8 weeks, but this will vary on a case-by-case basis and could be processed sooner. Of course, it could also take longer than 8 weeks. As such, it is advisable to appeal the ban as soon as possible after receiving it.