ATC151118: Submission of a Legislative Proposal: Memorandum in terms of rule 238 of the rules of the National Assembly by the Portfolio Committee on Home Affairs, dated 18 November 2015

Home Affairs

SUBMISSION OF A LEGISLATIVE PROPOSAL: MEMORANDUM IN TERMS OF RULE 238 OF THE RULES OF THE NATIONAL ASSEMBLY BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS, DATED 18 NOVEMBER 2015.
 

The Portfolio Committee on Home Affairs is hereby requesting the permission of the House in terms of Rule 230(1) for the introduction of the following legislation in the House, namely the Immigration Amendment Bill, 2015.

 

(1) Purpose of the Bill

The purpose of the Bill is to amend the Immigration Act, 2002 (Act No. 13 of 2002) so as to provide for an adequate sanction for foreign nationals who have overstayed in the Republic beyond the expiry date on their visa, in that such persons will not be able to acquire a port of entry visa, visa, admission into the Republic or a permanent residence permit for a prescribed period of time, and to effect certain consequential amendments. It is envisaged that this amendment should be contained in section 32 of the Immigration Act, 2002 (Act No. 13 of 2002).

 

(2) Background and Objects of the Bill

 

1. The Immigration Act, 2002 (Act No. 13 of 2002), (hereinafter referred to as the “principal Act”) in section 50(1), prior to its amendment by section 25 of the Immigration Amendment Act, 2011 (Act No. 13 of 2011), provided that foreigners who left the Republic after the expiry of their permits (now referred to as “visas” as per section 26 of the Immigration Amendment Act, 2011) would be liable to an administrative fine.   However, such administrative fines imposed were no longer serving as a deterrent and hence a proposal was made to amend section 30 of the principal Act so as to declare such foreigners who overstayed as undesirable. 

 

1. In order to give effect to this proposal, section 20 of the Immigration Amendment Act, 2011, amended section 30 of the principal Act by including a new paragraph (h) into subsection (1) of section 30. However, section 30(1)(h) of the principal Act (as amended by section 20 of the Immigration Amendment Act, 2011) provides that a foreigner may be declared undesirable where he or she has overstayed the prescribed number of times.

 

1. In practice, this current wording of section 30(1)(h) of the principal Act has created many interpretation challenges as some have interpreted it to mean that foreigners must have overstayed on more than one occasion in order for the consequences of undesirability to be visited on such person.  However, it has always been the intention to declare a foreigner undesirable even upon one instance of overstay. Hence, regulation 27 of the Immigration Regulations (dated 22 May 2014 and published in Government Gazette No. 37679) provides for a person who overstays after the expiry of his or her visa (even where such person has overstayed for the first time) to be declared undesirable for a certain period of time depending on the length of his or her overstay.

 

1. Despite these interpretation concerns, section 30(1)(h) could be useful as a tool to deal with persons who repeatedly overstay, and it is proposed that the section be retained for this purpose.

 

1. However, an amendment to section 32 of the principal Act and other consequential amendments are proposed in order to more clearly provide that illegal foreigners who have overstayed beyond the expiry date of their visas,  do not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit during the relevant  prescribed period.

 

(3) Financial Implications for the State

 

The proposed legislation is aimed at clarifying the provision already in operation and will not lead to any expenditure for the State.

 

Report to be considered.