A Prohibited Person is a foreigner:
- Against whom a warrant is outstanding or a conviction has been secured in South Africa or in any foreign country in respect of genocide, terrorism, human smuggling, trafficking in persons, murder, torture, drug-related charges, money laundering or kidnapping;
- Previously deported and not rehabilitated by the Department of Home Affairs;
- Who is or has been a member of an organization advocating the practice of racial hatred, social violence, or which utilizes crime or terrorism to pursue its ends;
- Found in possession of a fraudulent visa, passport, permanent residence permit or identification document.
Prohibited persons do not have to be “declared” as such. Often a foreigner finds that he or she simply cannot re-enter South Africa at a land border, or at a foreign port of embarkation. The reason for such restriction of entry could be that the foreigner’s identity details have been placed on the so-called “V-List” (“Visa Restricted” List) of the Department of Home Affairs.
What may also occur is that the foreigner has applied, within South Africa, for a temporary residence visa or a permanent residence permit and such application may be rejected because the DHA is of the view that a specific document or visa submitted by the applicant in his or her application, or in any past application, is “fraudulent” or has failed to be verified by the DHA.
The DHA may reject a visa or permit application on the basis of the applicant’s foreign or South African police record. Frequently while the applicant has never been convicted of the offences identified for prohibition purposes, the DHA may proceed to V-List such individual merely on the basis of its view that an ordinary “drunken-driving” conviction may render the applicant a person “not of good and sound character”. V-listing does occur on the basis of bureaucratic error.
The only remedy for a prohibited person is to apply to the Director-General of the DHA to declare him or her to be a “non-prohibited” person. Even though the Immigration Act merely requires a demonstration of “good cause” to have the DG lift the prohibition and remove his or her details from the V-List, DHA policy demands far more than “good cause” to lift the prohibition. Some of these applications are complex and technical and professional expertise is often well advised.
To be an “undesirable person” and placed on the V-List, the foreigner must fall into one of the following categories:
- Is or is likely to become a public charge;
- Identified as such by the Minister of Home Affairs;
- Who has been judicially declared incompetent;
- An unrehabilitated insolvent;
- Who has been ordered to depart in terms of the Immigration Act;
- A fugitive of justice;
- Has previous criminal convictions without the option of a fine for conduct which would be an offence in South Africa;
- Has overstayed after the expiry of their visa.
The Immigration Act requires that the affected foreigner is physically “declared” an undesirable person by being handed a “declaration of undesirability” by an immigration official. This often happens when a foreigner overstays his or her visa and departs through a South African port of entry. The immigration official will complete the declaration and hand it to the affected person, stipulating the number of days the person has overstayed: any overstay of up to 30 days renders the person banned from returning to South Africa for one year, and any overstay of 30 days or longer prohibits the person from returning to South Africa for five years.
The only way the affected foreigner may have the grounds of undesirability waived and his or her restrictions removed from the V-List, is to apply to the Minister of Home Affairs, also on the basis of “good cause”. This is effectively an appeal against the undesirability status. Often these appeals are complex and most often require the assistance of a professional.