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Immigration

Australia was recently considered to have 100 000 illegal immigrants, and figures from Brazil indicated as much as 700 000, whilst Canada is estimated to have as many as 120 000. The United Kingdom has significantly more, put at as many as 950 000, but this pales into insignificance against India’s tens of millions of illegal immigrants.

Perhaps we in South Africa do not have that degree of cause for concern, but the estimated 10 million should be worrying for the authorities.1 Xenophobic violence is also not unknown within our borders, unfortunately.

The Immigration Act 2002 is intended to provide for the regulation of admission of persons into the Republic, their residence here, and their departure. It is administered by the Department of Home Affairs.2

A. Entry and departure

  1. It is an offence to enter or depart from the Republic at a place other than a ‘port of entry’, which means a place designated by the Minister where all persons have to report before they may enter or depart from the Republic.3 4

  2. It is an offence to enter or depart from the Republic unless:
    • you are in possession of a valid passport;5 and
    • if your are under 16, with no passport, you are accompanied by a parent and in whose passport your name is entered;6 and
    • the entry, or departure is recorded by an immigration officer;7 and
    • you submit to questioning (‘examined’) by an immigration officer, if applicable.8

  3. Any foreigner (that is, an individual who is not a citizen) who enters the Republic must produce a valid visa to an immigration officer, if requested, and commits an offence if he fails to do so.9 10

  4. If you make any false representation, whether by conduct, statement or otherwise for the purpose of you or anyone else entering, remaining in, or departing from the Republic, you are guilty of an offence.11

  5. The same applies if you commit any fraudulent act for such purposes.12

  6. By the way, whilst it is not a criminal offence, if you overstay your visa or residence permit, you will be fined.13

B. False documentation

  1. You commit a crime if you produce any certification, contemplated by the Act, which is false.14

  2. Only a duly authorised civil servant can provide documents contemplated by the Act, and anyone else who does so, or manufactures such documents, or causes their manufacture or their provision commits a criminal offence.15

  3. If you use any lawfully issued permit, certificate or document but which you are not entitled to use, for the purpose of entering, remaining in, or departing from, the Republic you commit a criminal offence.16

  4. Obviously, it is also an offence to use forged documentation for these purposes.17

  5. In fact, if you even have in your possession any of the following, you are guilty of an offence:
    • a stamp or other instrument capable of being used to forge documents;18
    • any form officially printed for purposes of issuing documents under the Act;19
    • any blank passport, identity or other document used for cross-border movement;20
    • any such passport or document which reflects particulars of another person;21
    • any passport or other document for cross-border movement which is forged.22

  6. It is a crime to transit through the Republic unless in possession of a transit visa.23

  7. Any person in charge of a means of transport who enters the Republic at any place other than a port of entry commits a criminal offence.24 25

  8. Anyone who enters, departs from, or even remains, in the Republic in contravention of the Act commits an offence.26

  9. If you have in your possession, or tamper with, destroy, conceal or confiscate the passport, travel document or identity document (whether real or fake) of another person, in furtherance of criminal activities, that is a crime in itself.27

C. Illegal foreigners

An illegal foreigner is a person who is not a citizen and is in the Republic in contravention of the Act.

  1. An immigration officer may arrest any illegal foreigner, or deport him, or detain him pending his deportation.28 In these circumstances, the Director-General in the Department of Home Affairs can order the person concerned to deposit funds sufficient to cover, in whole or in part, the cost involved of his deportation, detention, etc. It is an offence not to comply with such an order.29

  2. Any person (other than a citizen or permanent resident) who has been deported and returns without lawful authority commits an offence.30

  3. Any person who has been refused admission to the Republic, and nevertheless enters the country, commits an offence.31

  4. Any person who escapes, or attempts to escape from detention which has been imposed under the Act commits a criminal offence.32

  5. It is an offence to assist or help an illegal foreigner, in any way, except for necessary humanitarian reasons.33

  6. An illegal foreigner who fails to comply with an order of the Director-General to depart from the country commits a criminal offence.34

  7. It is an offence to assist a person to enter, remain in, or depart from, the Republic in contravention of the Act.35

  8. You also commit a crime if you facilitate an illegal foreigner to receive public services to which he is not entitled.36

  9. In particular, a civil servant who does any of the following is guilty of an offence:

    • provides false, inaccurate or unauthorised documentation to an illegal foreigner;
    • facilitates an illegal foreigner to disguise his identity or status; or
    • accepts any financial or other compensation to perform an act, or exercise a discretion.37

D. Employment and accommodation

  1. It is an offence to employ an illegal foreigner.38

  2. It is an offence for a learning institution to provide training or instruction to an illegal foreigner.39

  3. The person in charge of any hotel, motel, boarding house, lodge, guesthouse and apartment building40 must keep a register (in the manner and with the detail prescribed by regulation) of all persons who are provided with lodging or sleeping accommodation, and commits a criminal offence if he fails to do so.41

  1. It is an offence to assist or help a (legal) foreigner in regard to anything if it will violate his status.42

  2. A foreigner who does not leave the country on the expiry of his status commits a criminal offence.43

  3. It is an offence to employ a (legal) foreigner whose status does not permit such employment,44 or whose work permit has conditions which would be contravened by such employment.45

  4. It is an offence for a learning institution to provide training or instruction to a foreigner whose status does not permit such training or instruction.46
  5. You are guilty of an offence if you employ a legal foreigner but in contravention of his conditions of residence.47

F. Officers and practitioners

  1. Any immigration officer, or a police officer, may request someone to identify his citizenship, or residence status. If they are not satisfied that he is lawfully in the Republic, they can arrest the person. Anyone who interferes with that process, including by assisting the person to evade the process, commits an offence.48

  2. No one may represent another person in proceedings or procedures under the Act except an attorney, advocate or registered immigration practitioner, and it is an offence to do otherwise.49

  3. It is a crime to offer financial or other consideration to an officer in order to induce him to contravene the Act, or to breach his duties in terms of the Act.50

  4. The same applies to anyone who uses threats in order to compel or induce an officer to do something against the Act, or in conflict with his duties – it is a crime.51

  5. Anyone who falsely pretends to be, or impersonates an immigration officer is guilty of an offence.52

South African ports of entry

BOTSWANA: Bray, Derdepoort, Giriyondo, Groblersbrug, Kopfontein, Makopong, McCarthy’s Rest, Middelputs, Platjan, Pontdrift, Ramatlabama, Skilpadshek, Stockpoort, Swartkopfontein, Twee Riviren, Zanzibar.

LESOTHO: Boesmansnek, Caledonspoort, Ficksburg Bridge, Makhaleng Bridge, Maseru Bridge, Monantsa Pass, Ongeluksnek, Onverwacht, Peka Bridge, Quacha’s Nek, Ramatsilitso, Sani Pass, Sepapus Gate, Tele Bridge, Van Rooyens Gate.

MOZAMBIQUE: Lebombo, Kosi Bay, Pafuri.

NAMIBIA: Alexander Bay, Gemsbok, Nakop, Onseepkans, Rietfontein, Sendelingsdrift, Vioolsdrift.

SWAZILAND: Bothashoop, Emahlathini, Golela, Jeppes Reef, Josephsdal, Mahamba, Mananga, Nerston, Onverwacht, Oshoek, Waverley.

ZIMBABWE: Beit Bridge, Pafuri.

SA HARBOURS: Cape Town, Durban, East London, Mossel Bay, Port Elizabeth, Port Ngqura, Richards Bay, Saldanha Bay.

SA AIRPORTS: Bloemfontein International, Cape Town International, Durban International, Gateway International, OR Tambo International, Lanseria International, Kruger Mpumalanga International, Pilanesberg, Port Elizabeth, Upington, East London.

  1. These statistics are taken from Wikipedia – ‘Illegal Immigration’ https://en.wikipedia.org/wiki/Illegal_immigration, with mostly NGO citation as authority. By definition, it must be anyone’s guess as to their accuracy. ↩

  2. The Minister is given the power to make a wide range of regulations to do with the Act. Some of these may provide for offences, but neither GNR615 of 27 June 2005 nor GNR413 of 22 May 2014 have such a provision. (The latter provides for ‘administrative fines’, but that is something different.) ↩

  3. According to http://www.home-affairs.gov.za/index.php/immigration-services/south-african-ports-of-entry, the designated ‘ports of entry’ are those listed at the end of this section. ↩

  4. Section 9(1) read with section 49(1)(a). ↩

  5. Section 9(3)(a) read with section 49(1)(a). ↩

  6. Section 9(3)(b) read with section 49(1)(a). ↩

  7. Section 9(3)(d) read with section 49(1)(a). ↩

  8. Section 9(3)(e) read with section 49(1)(a). ↩

  9. This does not apply when the foreigner has a (valid) work, study, business or one of the other recognized permits, or permanent resident status. ↩

  10. Section 10A(1) read with section 10A(5). ↩

  11. Section 49(14). ↩

  12. Section 49(14). ↩

  13. Section 50(1). ↩

  14. Section 49(8). ↩

  15. Section 49(9). ↩

  16. Section 49(15)(a)(i). ↩

  17. Section 49(15)(a)(ii). ↩

  18. Section 49(15)(b)(i). ↩

  19. Section 49(15)(b)(ii). ↩

  20. Section 49(15)(b)(iii). ↩

  21. Section 49(15)(b)(iii). ↩

  22. Section 49(15)(b)(iv). ↩

  23. Section 10B(1) and (3). ↩

  24. This does not apply in ‘extraordinary circumstances’. ↩

  25. Section 9(1) read with 49(1)(a). ↩

  26. Section 49(1)(a). ↩

  27. Section 49(15)(c). ↩

  28. Section 34(1). ↩

  29. Section 34(3) and (4). ↩

  30. Section 34(5)(a). ↩

  31. Section 34(5)(b). ↩

  32. Section 34(10). ↩

  33. Section 42(1)(a) and (2). ↩

  34. Section 49(1)(b). ↩

  35. Section 49(2). ↩

  36. Section 49(4). ↩

  37. Section 49(5). ↩

  38. Section 49(3). ↩

  39. Section 39(1)(a) read with section 49(6). ↩

  40. These are ‘premises within the prescribed class’ as contemplated by Regulation 31 of GNR616. ↩

  41. Section 40(1),(2) and (3). ↩

  42. Section 42(1)(b) read with section 49(6). ↩

  43. Section 43(b) read with section 49(6). ↩

  44. For example, he may be in the country on a medical treatment permit, so is not entitled to conduct work. ↩

  45. Section 38(1)(b) and (c) read with section 49(6). ↩

  46. Section 39(1)(b) and (c) read with section 49(6). ↩

  47. Section 38(1)(c) read with section 49(6). ↩

  48. Section 41 read with section 49(6). ↩

  49. Section 46(1) read with section 49(6). ↩

  50. Section 49(10). ↩

  51. Section 49(10). ↩

  52. Section 49(13). ↩

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