Immigration Act 13 of 2002 – summary

Chapter 1: Definitions & Interpretation

  1. Terms Explained
    The Act starts by defining key words used throughout. Unless stated otherwise, here’s what they mean:

    • Admission: Being allowed to enter South Africa at a designated entry point.
    • Advance passenger processing: Pre-checking passengers before they board transport by issuing special notifications.
    • Affiliate: An associate member of a company or organization.
    • Board: The Immigration Advisory Board set up under Section 4.
    • Border: The national borders of South Africa.
    • Branch: As defined under the Companies Act (a subsidiary part of a company).
    • Citizen: As defined in the Citizenship Act of 1995.
    • Conveyance: Any mode of transport—like a plane, boat, or vehicle.
    • Corporate applicant: A legal entity (e.g. corporation) in South Africa applying for a corporate visa.
    • Court: Refers to a magistrate’s court (or Immigration Court in some versions).
    • Department: The Department of Home Affairs.
    • Depart/Departure: Leaving South Africa via an official entry/exit point.
    • Deport/Deportation: The process of removing someone unlawfully in the country.
    • Director‑General: Head official at the Department of Home Affairs.
    • Employer: A person or company legally responsible for hiring people.
    • Foreign country/state: Any country that is not South Africa.
    • Foreigner: A person who is not South African.
    • Illegal foreigner: A foreigner in South Africa in violation of this Act.
    • Immediate family: Relatives up to two steps away (e.g. parent or child) excluding shared ancestors.
    • Immigration officer: A person authorised to enforce immigration laws.
    • Marriage: Includes legal marriages, civil unions, or marriages recognized by foreign law.
    • Minister: The Minister of Home Affairs.
    • Owner: Owner of a vehicle or their representative.
    • Passenger Name Record: Passenger travel data recorded by transport operators.
    • Passport: Official travel document issued by South Africa, foreign states, or approved by the Minister
    • Permanent residence permit: Authorisation to live in South Africa permanently
    • Port of entry: Official location for entering or leaving South Africa.
    • Port of entry visa: Permission to travel to South Africa’s entry point for admission.
    • Premises: Any land or building, or even a transport vehicle.
    • Prescribed: Means as outlined in official regulations.
    • Prohibited person: Someone who’s not allowed to enter South Africa (as per Section 29).
    • Republic: Refers to South Africa. (This definition was removed in later amendments.)
    • Spouse: A legal partner through marriage or civil partnership.
    • Status: Your legal standing in South Africa under a visa or permit.
    • Subsidiary: Covered under company law as a smaller part of a larger company.
    • Temporary residence permit: A temporary visa—this term has been removed in later updates.
    • Transit visa: Permission to pass through South Africa en route to another destination.
    • Undesirable person: Someone categorized as unwelcome under Section 30.
    • Visa: Official permission to enter and stay in South Africa for specific reasons (visit, work, study, etc.)
    • Work: Any job-related activity or conducting business—even without pay.

 

Chapter 2: Administration of the Act

  1. Department of Home Affairs in Charge

The Department of Home Affairs is responsible for applying and enforcing the immigration law. The Director-General (head of the department) leads this.

 

  1. Establishing Immigration Control

Immigration control in South Africa aims to:

  • Welcome foreigners who bring skills and investment.
  • Protect the country from illegal immigration, security risks, and abuse of the system.
  • Make the system efficient and in line with international practices.
  • Encourage tourism and trade while protecting local jobs.
  • Respect the rights of individuals.

 

  1. Immigration Advisory Board

This Board:

  • Advises the Minister of Home Affairs on policy, permits, and regulations.
  • Can include officials from other departments (e.g., labour, police, education) and experts in immigration.

The Board can recommend improvements, hear appeals, and help make immigration work better for the country.

 

  1. Director-General’s Powers

The Director-General:

  • Makes decisions about visas and permits.
  • Can reject or approve applications.
  • Can inspect businesses and homes to ensure compliance with immigration laws.
  • Must follow the law, but also has some discretion in interpreting it.

 

  1. Delegation of Powers
  • The Director-General can give other officials the power to carry out certain duties—like issuing permits or conducting inspections.

 

  1. Immigration Officers
  • These officers are appointed to enforce immigration laws.
  • They can enter premises, ask for documents, and detain illegal foreigners.
  • They must carry IDs and follow strict rules when performing duties.

 

  1. Inspectorate

An inspectorate (a team of inspectors) is formed to:

  • Monitor workplaces and other places where foreigners are employed or housed.
  • Check for illegal activities.
  • Enforce the law fairly and professionally.

 

In short, Chapter 2 sets up the administration and enforcement structure for immigration in South Africa—defining who does what, and giving powers to officials to control immigration fairly and efficiently.

 

Chapter 3: Temporary Visas and Entry Requirements (Plain English Summary)

  1. Needing a Visa to Enter and Stay

If you’re a foreigner without a permanent residence permit, you must have a valid visa issued by the Director‑General to enter and stay in South Africa for a set period.

 

  1. Types of Visas You Can Apply For

You can apply—personally and following official guidelines—for a visa depending on your purpose. These include:

  • Transit visa: Just passing through South Africa
  • Visitor’s visa: For tourism, short visits, sabbaticals, charitable work, research, or other allowed activities
  • Study visa: If you’re studying at a South African institution
  • Visa under international agreements: For someone conducting activities under a global treaty involving South Africa
  • Business/Investment visa: When establishing or investing in a South African business
  • Crew visa: For crew members of ships or aircraft entering the country
  • Medical treatment visa: If you’re coming for healthcare services
  • Relative (family) visa: Visiting or staying with immediate family members within South Africa
  • Work visa: For employment purposes under Sections 19 or 21
  • Retirement visa: For retirees meeting financial requirements
  • Exchange visa: For cultural, academic, or social exchanges
  • Asylum visa: For applying for refugee status

 

  1. Visa Issued Abroad Begins at Admission

If your visa is issued by a South African representative outside the country, it only becomes valid once you’ve been admitted through an official entry point.

 

  1. Port of Entry Visa
  • You may need a port of entry visa that allows you to travel to a border or airport and then undergo immigration checks.
  • In many cases, if you already have one of the visas listed above or a permanent residence permit, you are considered to have a valid port of entry visa as well.
  • The Minister has the power to:
    • Exempt certain people or groups from needing this visa.
    • Withdraw exemptions or port of entry visas for good reason.
  • Depending on the version, failing to produce the port of entry visa when required can be an offense, possibly leading to a fine or up to 12 months in prison.

 

  1. Visitor’s Visa Specifics
  • Typically issued for up to 3 months, but can be renewed for another 3-month stint.
  • In special cases (e.g., sabbaticals, research, charity), visitors may get a visa for up to 3 years, provided they show sufficient financial means and engage in acceptable activities.
  • A visitor’s visa does not automatically allow you to work, unless the Director‑General approves it under certain conditions.

 

Summary Table

Section Purpose
Entry Requirement Must have a valid visa unless you’re a permanent resident
Types of Visas Transit, visitor, study, business, medical, work, etc.
Visa Validity Starts at admission if issued abroad
Port of Entry Visa Allows entry—may be exempted or required
Visitor’s Visa Details Short duration, renewable, limited work permissions

 

Chapter 4: Permanent Residence (Plain English Summary)

This chapter explains who can apply for permanent residence in South Africa, under what conditions, and how the system works.

 

  1. Who Qualifies Automatically (Permanent Residence on the Basis of Direct Rights)

Certain people must be issued permanent residence if they apply and meet specific conditions. These include:

  1. Spouses of South African citizens or permanent residents (if married for 5+ years).
  2. Children of South African citizens or permanent residents (biological or adopted).
  3. People who’ve held work visas for 5 years and still have a permanent job offer.
  4. Refugees with official refugee status (under Refugees Act).
  5. Retirees who can prove they have enough income.
  6. People who’ve lived in South Africa legally for 5+ years on certain visa types, like business or critical skills.

These people can’t be denied unless they pose a security threat, or submitted fraudulent information.

 

  1. Discretionary Permanent Residence (You Can Apply, but Approval Is Not Guaranteed)

You may apply for permanent residence if you fall into one of these categories:

  1. Workers with rare or critical skills.
  2. Business owners or investors starting or joining a South African business (must invest a minimum amount).
  3. Refugees with permanent status under the Refugees Act.
  4. Retirees with enough financial resources.
  5. People with a relative in South Africa (spouse or family up to 2nd degree).
  6. People with exceptional qualifications or who will contribute to SA’s development.
  7. Anyone who has been in SA legally for more than 5 years (and meets other conditions).

In these cases, the Minister/Director-General decides if your application will be approved.

 

  1. Applications and Conditions
  • Applications must be submitted in person and follow the official format.
  • You must meet all requirements (including background checks, health certificates, financial proof, etc.).
  • If approved, you receive a certificate of permanent residence.

If you provide false information or forged documents, your application can be denied or your permit cancelled later.

 

  1. Prohibited Persons – Cannot Get Permanent Residence

Some people are not allowed to apply for permanent residence, including:

  • People with serious criminal records.
  • People with infectious or dangerous diseases.
  • People considered a security threat.
  • People who misused visas in the past.
  • People found to have entered illegally or provided false documents.

The government can deny permanent residence to protect the public or national interest.

 

  1. Undesirable Persons

The Minister may declare someone undesirable and therefore not eligible for a visa or permit. This includes people who:

  • Were previously deported.
  • Overstayed their visas.
  • Gave false info to immigration.
  • Are likely to become a burden on South Africa (e.g., financially).

You can appeal or request the declaration be lifted under certain conditions.

 

  1. Withdrawal of Permanent Residence

The government can take away your permanent residence if:

  • You obtained it using false or misleading information.
  • You commit serious crimes or threaten national security.
  • You are outside South Africa for 3+ years without good reason.

You may be given a chance to respond before the permit is withdrawn.

 

Summary Table

Focus Area Key Idea
Automatic eligibility Certain people must be granted PR
Discretionary eligibility Others may qualify but need approval
Application process Must apply in person and meet all rules
Prohibited persons Some people cannot apply at all
Undesirable persons May be banned from applying temporarily
Cancellation of permanent residence Can lose PR under specific conditions

 

Chapter 5: Deportation and Detention of Illegal Foreigners

This chapter explains what happens to foreigners who are in South Africa illegally, how they can be detained, and how deportation works.

 

  1. Illegal Foreigners Must Leave or Be Deported
  • Anyone in South Africa without legal permission (no valid visa or permit) is considered an illegal foreigner.
  • The law says they must leave the country immediately, or they can be deported by the government.

 

  1. Monitoring and Reporting of Foreigners
  • The owner of any premises (like landlords, hotels, employers) must take reasonable steps to:
    • Prevent illegal foreigners from staying there.
    • Report them to immigration officials if discovered.
  • Landlords and employers can be fined or prosecuted if they knowingly assist or house illegal foreigners.

 

  1. Arrest, Detention, and Deportation

This section outlines how an illegal foreigner can be arrested, detained, and removed from the country:

Key Points:

  1. Immigration officers or the police can arrest and detain someone suspected of being an illegal foreigner.
  2. The person may be held in a detention facility, not a prison, unless it’s necessary.
  3. They can be held for up to 48 hours before being:
    • Released, if found to be legal,
    • Or issued a deportation order.
  4. If more time is needed, the government must get a court order to keep someone longer:
    • Up to 30 days (initial period).
    • Can be extended, but only by a magistrate and only if justified.
    • Total detention time may not exceed 120 days without a court’s explicit permission.
  5. Detainees must be informed of their rights, including:
    • Right to contact a lawyer or consulate,
    • Right to challenge the detention in court.
  6. Minors and families must be treated with special care (e.g., not separated without cause).

 

  1. Transportation and Costs
  • The owner or operator (airline, shipping company, etc.) that brought an illegal foreigner into South Africa is responsible for:
    • Transporting the person out of the country,
    • Covering the costs of their detention and removal.

For example, if an airline brings someone in without a proper visa, they must fly them back at their own expense.

 

Summary Table

What It Covers Key Takeaway
Illegal Foreigners Must leave voluntarily or be deported
Landlords & Employers Must not support or hide illegal foreigners
Detention Rules Clear process, time limits, and rights for detainees
Transport Companies Must pay to remove people they brought illegally

 

Chapter 6: Immigration Courts and Appeals

This chapter explains how people can challenge immigration decisions (like being denied a visa or being ordered to leave the country), and how these cases are handled by immigration courts or review boards.

 

  1. Immigration Courts
  • The Minister of Home Affairs, with the help of the Minister of Justice, can establish immigration courts.
  • These courts will:
    • Handle appeals and reviews of immigration-related decisions.
    • Be run by qualified legal professionals, like magistrates or retired judges.
  • Immigration courts are meant to ensure fairness and independent oversight of immigration enforcement.

These courts don’t exist everywhere by default—they’re set up as needed.

 

  1. Appeals to the Minister
  • If someone’s immigration application (visa, permit, etc.) is denied or cancelled, they can appeal directly to the Minister of Home Affairs.
  • The appeal must:
    • Be submitted in writing,
    • Follow the rules and time limits in the regulations.

For example: If your visa extension is refused, you can appeal to the Minister and ask them to overturn the decision.

 

  1. Review by the Courts
  • If someone disagrees with an immigration decision, they can also go to court to have the decision reviewed.
  • This is usually done by a High Court.
  • The person must:
    • Prove that the decision was unlawful, unfair, or unreasonable.

Judicial review is a legal safeguard to ensure that immigration officials follow the law.

 

Summary Table

Topic What It Means
Immigration Courts Special courts can be set up to handle immigration cases
Appeals to Minister You can ask the Minister to reverse a decision
Court Review You can take your case to court for legal review

 

Chapter 7: Enforcement and Offences

This chapter deals with penalties, offences, and the powers immigration officers have to enforce the law.

 

  1. Powers of Immigration Officers

Immigration officers can:

  • Enter and inspect any place where they believe foreigners live or work (like homes, businesses, or farms), with a warrant or under certain legal exceptions.
  • Ask for documents proving a person’s immigration status.
  • Question people about possible immigration offences.
  • Detain or arrest illegal foreigners (following the law and people’s rights).

Officers must carry official ID and act according to the Constitution.

 

  1. Assisting Illegal Foreigners is a Crime

It’s a criminal offence to:

  • Help someone enter or stay in South Africa illegally (e.g., by providing housing, jobs, or false documents).
  • Arrange fake marriages to get immigration benefits.
  • Transport or hide illegal foreigners.

Penalty: A fine, prison time (up to several years), or both—depending on how serious the offence is.

 

  1. Employing Illegal Foreigners

It’s illegal to employ someone who doesn’t have permission to work in South Africa.

Employers must:

  • Check the person’s documents (e.g., work visa or permit).
  • Keep records proving they did this.

Employers who break this law can face heavy fines or jail time.

 

  1. False Documents and Misrepresentation

It’s a crime to:

  • Forge documents (like passports, visas, or permits),
  • Use fake IDs or stamps,
  • Lie or give false info to immigration officials.

Penalty: Serious criminal charges, including imprisonment or deportation if the offender is a foreigner.

 

  1. Marriages of Convenience

A “marriage of convenience” is when two people get married just to get immigration benefits, not because they’re genuinely in a relationship.

  • These fake marriages are illegal.
  • Both parties can be prosecuted and may lose any immigration rights gained from the marriage.

 

  1. Obstructing Immigration Officers

It is a criminal offence to:

  • Threaten, obstruct, or interfere with immigration officers while they’re doing their duties.

 

. Penalties

Depending on the offence, penalties can include:

  • Fines,
  • Imprisonment (some offences carry up to 8 years in prison),
  • Or both.

Each offence is treated according to how serious it is.

 

 

Topic Summary
Powers of officers Officers can inspect and enforce, within legal limits
Assisting illegal foreigners Helping someone stay illegally is a crime
Hiring illegal workers Employers must check documents or face penalties
Fake documents Forgery or lying is a serious offence
Fake marriages Marrying just for a visa is illegal
Obstruction Interfering with officers is a crime
Penalties Offences carry fines and/or jail time

 

Chapter 8: General Provisions

This final chapter includes general rules about how the Act is implemented, interpreted, and updated.

 

  1. Regulations
  • The Minister of Home Affairs can make regulations (official rules) to help carry out this law.
  • These regulations may include:
    • Application procedures for visas and permits.
    • Forms and required documents.
    • Fees that must be paid.
    • Processes for appeals, reviews, and hearings.
    • Anything else needed to make the law work effectively.

All regulations must be published in the Government Gazette, so the public is aware.

 

  1. Designation of Ports of Entry
  • The Minister, with help from relevant government departments (like Defence or Transport), can declare certain places as official ports of entry.
    • Examples: airports, harbours, or border posts.

Only these approved places can be used for legal immigration or emigration.

 

  1. Fees
  • The Minister may set fees for different immigration services:
    • Visa applications
    • Renewals
    • Permanent residence permits
    • Appeals
  • These fees must be fair and based on the cost of processing the services.

 

  1. Delegation of Powers
  • The Minister and the Director-General can give (or “delegate”) their responsibilities to other senior officials if needed.

This helps the department function efficiently and ensures decisions aren’t delayed unnecessarily.

 

  1. Repeal of Old Laws

This Act replaces older immigration laws that were in place before 2002. It specifically repeals:

  • The Aliens Control Act, 1991 (Act No. 96 of 1991), and
  • Related amendments and sections of other laws.

This ensures all immigration matters are now governed under one modern law.

 

  1. Short Title and Commencement
  • The official name of this law is the Immigration Act, 2002.
  • It came into effect on a date chosen by the President of South Africa, announced in the Government Gazette.

 

Summary Table

Topic What It Means
Regulations Minister can set rules and procedures
Ports of Entry Official entry points into the country
Fees Fees may be charged for immigration services
Delegation of Powers Officials can assign duties to others
Repeal of Old Laws Old immigration laws are no longer valid
Short Title and Start Official name and start date of the Act