By Nivaani Moodley, Associate Director & Bianca Rutherfoord-Jones, Immigration Specialist from Webber Wentzel

Several immigration developments from the Department of Home Affairs (DHA) unfolded over the 2023 festive season. These include an extension of temporary concession for foreign nationals awaiting outcomes to their pending applications and granting extended exemptions for both Zimbabwe and Lesotho nationals.

Reports of visa processing delays have spurred concerns regarding challenges to immigration processes and a burden to economic growth due to skilled individuals being restricted from entering South Africa. While the regulatory approach to alleviating these concerns is still unfolding, encompassing proposed reforms to South Africa's suite of migration legislation, we provide an overview of the current state of affairs and the impacts thereof.

Backlog relief extended for waivers, visas and appeals

On 21 December 2023, the DHA's Acting Director-General provided a temporary extension, from 31 December 2023 to 30 June 2024, for foreign nationals awaiting the outcomes of their waiver, visa and appeal applications. The temporary extension considers the below measures, which will apply with immediate effect.

• The extension enables the DHA to process the applications of visa holders who applied for a waiver which were still being processed as of 30 November 2023, and for these applicants to collect their outcomes and submit applications for the appropriate visas.
• Applicants of the long-term visas (Visitor's Visas in terms of sections 11(1)(b) and 11(6) of the Immigration Act, Business Visas, Study Visas, Relative's Visas and Work Visas) which were still being processed as of 30 November 2023 are not allowed to engage in any other activity that is not specified in the terms of their current visa conditions.
• Applicants who have appealed a negative decision on an application for a long-term visa (Visitor's Visas in terms of sections 11(1)(b) and 11(6) of the Immigration Act, Business Visas, Study Visas, Relative's Visas and Work Visas) must adhere to the conditions or limitations provided for in their current visa conditions.
• Short-term visa holders (issued in terms of section 11(1)(a) of the Immigration Act) whose visa validity was 90 days or less, up to and including 30 November 2023, and who have not received their visa extension outcomes by 23 February 2024, will need to make the necessary arrangements to leave South Africa on or before 29 February 2024. This is to avoid these short-term visa holders being declared as undesirable persons.

Other waiver, visa and appeal considerations include:

• Foreign nationals who wish to abandon their pending waiver, long-term visa or visa appeal applications and leave the country instead, may do so on or before 30 June 2024 without being declared undesirable.
• Foreign nationals with pending waiver and long-term visa applications, who originate from visa-exempt countries and wish to travel, may do so if they present their original VFS receipt upon departure and re-entry into South Africa.
• Foreign nationals with pending waiver and long-term visa applications who originate from non-visa-exempt countries and wish to travel, may do so (if they present their original VFS receipt upon departure) but will be required to apply for and produce a port of entry visa to be allowed re-entry into South Africa.
• Foreign nationals with pending visa appeal applications, who originate from visa-exempt countries and wish to travel, may do so if they present their original VFS receipt and a copy of the rejection letter upon departure and re-entry into South Africa.
• Foreign nationals with pending visa appeal applications who originate from non-visa exempt countries and wish to travel, may do so (if they present their original VFS receipt and a copy of the rejection letter upon departure) but will be required to apply for and produce a port of entry visa to be allowed re-entry into South Africa

The extended temporary measures will only apply to foreign nationals who have legally entered South Africa and have applied for an application through the relevant VFS Centre on or before 30 November 2023.

Extended exemptions for both Zimbabwe and Lesotho nationals

On 4 December 2023, the Minister of Home Affairs issued Immigration Directives No 3 and 4 of 2023, which state that Lesotho Exemption Permit (LEP) and Zimbabwean Exemption Permit (ZEP) holders have an immediate extension until 29 November 2024. During this time, the LEP and ZEP holders may apply for the extensions of their visas at their respective VFS Centres. Immigration Directives No 3 and 4 of 2023 follow directives issued on 2 September 2022 (read the insight titled: Some relief for Zimbabweans and another internal change) and 7 June 2023 (read the insight titled: Update: Further relief for ZEP holders with the concession extended until 31 December 2023).

The directives also provide that LEP and ZEP holders should:

• not be arrested, ordered to depart, detained for deportation or deported;
• not be dealt with in terms of sections 29 (prohibited persons), 30 (undesirable persons) and 32 (illegal foreigners) of the Immigration Act;
• enter or depart from South Africa in terms of section 9 of the Immigration Act, provided that they comply with all other requirements for entry into and departure from the country; and
• not be required to produce: (i) a valid exemption certificate/permit; or (ii) an authorisation letter to remain in South Africa when applying for an extension of the LEP and ZEP.

LEP and ZEP holders will be required to apply for this extension permits through the relevant VFS Centre by:

• completing the online application form;
• paying the prescribed service fee; and
• booking an appointment for submission purposes.

On the date of the appointment, the LEP and ZEP applicant/s will need to provide a host of documents in support of the applications.

LEP and ZEP holders who apply for the renewal exemption permits must also disclose and/or register all their minor children born and residing in South Africa. Most notably, the Minister has indicated that the renewal exemption permits for the LEP and ZEP will not be renewable.

The Minister further directed that (i) the approximate 78 126 Zimbabwean nationals who have already applied for their waivers applications, and (ii) the approximate 10 427 Zimbabwean nationals who have already applied for the relevant visas set out in the Immigration Act; are exempted and do not need to apply for the extension of exemption permits, while waiting for the outcomes of their pending applications.

The Webber Wentzel Immigration team continues to monitor directives issued by the DHA to provide updates, insights, and analysis.