Immigration Amendment Act, 2004

1. The Preamble of the Immigration Act, 2002 (Act No. 13 of 2002), hereinafter referred to as the principal Act, is hereby substituted for the following Preamble: 5 “PREAMBLE the Republic and In providing for the regulation of admission of foreigners to, their residence in, and therewith, the their departure from Immigration Act aims at setting in place a new system of immigration control which ensures that- ( a ) temporary and permanent residence permits are issued as expeditiously as possible and on the basis of simplified procedures and objective, predictable and reasonable requirements and criteria, - and without consuming excessive administrative capacity; for matters connected 10 4 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 borders of the on Trade in the economic growth is promoted through security considerations are fully satisfied and the State retains control [on] E the immigration of foreigners to the Republic; interdepartmental coordination [constantly enriches] and public consulta- tions enrich the functions of immigration control [and that a constant flow of public inputs is present in further stages of policy formulation, including 5 regulation making]; [the needs and aspirations of the age of globalization are respected and the provisions and the spirit of the General Agreement Services is complied with] employment of needed foreign labour, foreign investment is facilitated, the 10 entry of exceptionally skilled or qualified people is enabled, skilled human resources are increased, academic exchanges within the Southern African Development Community is facilitated and tourism is promoted; [border monitoring is strengthened to ensure that the Republic do not remain porous and illegal immigration through them may be effectively detected, reduced and deterred] in the continent and the region is recognised; the entry and departure of all persons facilitated, administered and managed; immigration laws are efficiently and effectively enforced, deploying to this 20 end significant administrative capacity of the Department of Home Affairs, thereby reducing the pull factors of illegal immigration; the South African economy may have access at all times to the full measure of needed contributions by foreigners; the contribution of foreigners in the South African labour market does not 25 adversely impact on existing labour standards and the rights and expectations of South African workers; a policy connection is maintained between foreigners working in South Africa and the training of our [nationals] citizens; push factors of illegal immigration may be addressed other Departments and the foreign states concerned; immigration control is performed within the highest applicable standards of human rights protection[,]; [and] xenophobia is prevented and countered [both within Government and civil society]; in cooperation with 30 the role of the Republic entry are efficiently at ports of 35 15 ( n ) a hum& rights based culture of enforcement is promoted; (0) the international obligations of the Republic are complied with; and (p) civil society is educated on the rights of foreigners and refugees.". Amendment of section 1 of Act 13 of 2002

2. Section 1 of the principal Act is hereby amended by- ( a ) the substitution for subsection (1) of the following subsection: "( 1) In this Act, unless the context [indicates] otherwise indicates- 40 6 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGR4TION AMENDMENT ACT, 2004 [(i)l 5 ‘admission’ means entering the Republic at a port of entry [on the basis of the authority to do so validly granted by this Act or by an immigration officer in terms of this Act, and the verb “to admit” has a corresponding meaning] in terms of section 9; “application” means a request in the prescribed form which complies with the requirements and provides the information and documentation which may be prescribed;] ‘Board’ means the Immigration Advisory Board [contemplated in] established by section 4 [of this Act]; ‘border’ means the national borders of the Republic [and includes 10 ports of entry, coastlines and the outer margin of territorial waters]; “chartered accountant” means a person referred to in section 1 of the Chartered Accountants Designation (Private) Act, 1993 (Act No. 67 of 1993) and includes an accountant, other than a 15 chartered accountant, who is recognised as such under any law and who has been specifically or generally delegated by a chartered accountant to perform any or all activities contem- plated in this Act;] ’citizen’ has the meaning assigned thereto in the South African 20 Citizenship Act, 1995 (Act No. 88 of 1995) [and “citizenship” has a corresponding meaning]; ‘conveyance’ means any ship, boat, aircraft or vehicle, or any other means of transport; [(vii)] ‘corporate applicant’ means a juristic person established under the 25 laws of the- Republic or of -a foreign country which conducts business, not-for-gain, agricultural or commercial activities within the Republic and which applies for a corporate permit referred to in section 21 [of this Act]: ‘[Court] - court’ means [an Immigration Court established in 30 terms of section 37 of this Act] a magistrate’s court; ‘customary union’ means a [conjugal relationship according to indigenous law and custom and which is recognised and documented as prescribed] customary union recognised in terms of the Recognition of Customary Marriages Act, 1998 (Act No. 120 35 of 1998); ‘Department’ means the Department of Home Affairs; ‘depart or departure’ means exiting the Republic from a port of entry in compliance with this Act [and the verb ‘<to depart” has a corresponding 40 meaning]; 8 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 or procedure aimed at ‘deport or deportation’ means the action causing an illegal foreigner to leave the Republic [involuntarily, or under detention] in terms of this Act [and the verb “to deport” has a corresponding meaning]; ‘Director-General’ means the Director-General of the Department; ‘employer’ includes [the] a person contractually bound by the applicable employment contract as an employer or, in the case of a juristic person, its chief executive officer or the person to whom responsibility in respect of such officer has delegated the final personnel matters; ‘foreign country’ means a country other than the Republic; ‘foreign state’ means the juristic entity governing a foreign country; a citizen [nor ‘foreigner’ means an individual who is [neither] a resident, but is not an illegal foreigner]; ‘illegal foreigner’ means [an] 1 foreigner who is in the Republic in contravention of this Act [and includes a prohibitedperson]; ‘immediate family’ means persons within the second step of kinship, where marriage or a spousal relationship is counted as one of such steps, but any common antecedent is not so counted; ‘immigration officer’ means an officer [of the Department, or another person having the prescribed requirements, appointed as such from time to time by the Department and, for purposes of this Act, includes a person employed in, or contracted by, the Department who has been authorised exercise certain powers and perform certain functions in the name of and on behalf of the Department] appointed in terms of section 33; ’marriage’ means [a legally sanctioned conjugal relationship intended to be permanent and concluded under the laws of the Republic, or]- (a) a marriageconcluded in terms of the Marriage Act, 1961 (Act by the Department to 5 10 15 20 25 30 No. 25 of 1961); or (b) a legal marriage-under the laws of a foreign country [as time, and includes a customary prescribed from time to union]; “master” means the master of a ship and refers to the person who at any given time is in charge or command of a ship;] ‘Minister’ means the Minister of Home Affairs; ‘organ of [State] s t a t e ’ [has the meaning] means an organ of state - as defined in section 239 of the Constitution; ‘owner’ means the owner of record and[, in the case of a ship, it] includes the charterer of [the ship] a conveyance and any agent within the Republic of the owner or the charterer; ‘passport’ means any passport or travel document containing the prescribed information and characteristics issued- (a) under the South African [Passport] Passports and Travel [Document] Documents Act, 1994 (Act No. 4 of 1994); ( 6 ) on behalf of a foreign state recognised by the Government of the Republic to a person who is not a citizen; (c) on behalf of any international organisation prescribed [from including regional or sub-regional [ones] time to time], organisations, to a person who is not a citizen[; and]^ [(d)] any other document approved by the [Director-General after consultation with the] Minister and issued under special circum- stances to a Derson who cannot obtain a document [referred to1 contemplated in paragraphs (a) to (c); ‘permanent residence permit’ means a permit contemplated in section 25, 26 or 27; [(xxvii)] ‘port of entry’ means a place [prescribed from time to time] designated as such by the Minister where [a foreigner] all persons 35 40 45 50 55 60 10 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 [(xxviii)] [(xxxii) [(xxxiii)] [(xxxiv) [(XXXV) [(xxxvi)] [(xxxvii)] 5 adjoining land used includes any land without any to report before [he or she] they may [move] enter, [has] sojourn or remain within, or [enter] depart from the Republic; ‘premises’ means any building, structure or tent, together with the land on which it is situated and the in connection with it, and building, structure or tent and any [vehicle,] conveyance[, or ship]; ‘prescribed’ means [provided for] prescribed by regulation[, the verb “to prescribe” has a corresponding meaning and “pre- scribed from time to time’’ refers to section 7(2)]; ‘prohibited person’ means any person [referred to] contemplated in 10 section 29 [of this Act]; “publish” means publish by notice in the Government Gazette and, to the extent possible and feasible under the circumstances, convey by mail or e-mail to parties or stakeholders who have requested their inclusion or have been included in mailing lists 15 to be maintained by the Department in respect of subject matters in respect of which public input is called for by this Act, prescribed, advisable or expedient;] “regulations” means general rules adopted by the Minister after consultation with the Board in terms of this Act andpublished;] 20 ‘Republic’ means the Republic of South Africa [and its territory]; “resident” means the holder of a permanent residence permit referred to in section 25 of this Act;] “ship” includes any vessel, boat, aircraft or other prescribed conveyance;] ‘spouse’ means a person who is 1 party to= a marriage, or a customary union[,]; or @ [to] a permanent homosexual or heterosexual relationship 25 [which calls for cohabitation and mutual financial and emotional support, and is proven by aprescribed affidavit 30 substantiated by a notarial contract and “spousal relation- ship” has a corresponding meaning] as prescribed; this Act [and includes the rights and ‘status’ means the status of the person as determined by the relevant permanent or temporary residence permit [issued] granted to a person in terms of obligations flowing therefrom, including any term and condi- tion of residence imposed by the Department when issuing any such permits]; ‘temporary residence permit’ means a temporary residence permit [referred to] contemplated in section 10 [of this Act];. ‘this Act’ means this Act, including its schedules, and includes the regulations made pursuant thereto; “training fund” means the public record referred to in section 2(2)(n)(i) of this Act;) .- . , . -, . . 35 40 ‘transit visa’ means a transit visa contemplated in section 10B; [(xli)] ‘undesirable person’ means a person [referred to] contemplated in 45 [(xlii)] [(xliii)] report for a Republic to view to admission on section 30 [of this Act]; ‘visa’ means [the prescribed endorsement issued upon upplica- tion on the valid passport of a foreigner granting such foreigner 50 the authority to proceed to the prescribed examination to an immigration officer at the port of entry with a residence, which at any time before admission may be withdrawn by the Department] the authority contemplated in section 10A to proceed to a port ‘work’ [means business, commercial or remunerative activities within the Republic, excluding work on the basis of a permit referred to in sections 12 or 14, or work for a foreign employer pursuant to a contract which only partially calls for activities in the Republic, or work as a business or profession mainly based 60 outside the Republic but requiring activities within the Repub- lic] includes- a specified temporary entry; 55 of 12 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT. 2004 (a) conducting any activity normally associated with the running of a specific business; or (b) being employed or conducting activities consistent with being employed or consistent with the profession of the person, with or without 5 or reward, remuneration within the Republic.”; and ( 6 ) the deletion of subsection (2). Repeal of section 2 of Act 13 of 2002

3. Section 2 of the principal Act is hereby repealed. Substitution of section 3 of Act 13 of 2002 10

4. The following section is hereby substituted for section 3 of the principal Act: “Delegation of powers 3. (1) The Minister may, subject to the conditions that he or she may deem necessary, delegate any power conferred on him or her by this Act, 3, 4, 5 and 7, to an officer or excluding a power referred to in sections category of officers or an employee or category of employees or a person or category of persons in the Public Service, but shall not be divested of any power so delegated. (2) The Director-General may, subject to the conditions that he or she may deem necessary, delegate any power conferred on him or her by this employee or category of of officers or an Act to an officer or category employees or a person or category of persons in the Public Service, but 1 shall not be divested of any power so delegated.”. 15 20 Amendment of section 4 of Act 13 of 2002

5. Section 4 of the principal Act is hereby 25 amended- (a) by the substitution for subsection-(2) of the following subsection: “(2) (a) The Board shall consist of- (i) (aa) the Director-General; and (bb) the Head of the National Department; Immigration Branch of the (ii) a representative of the following Departments, at least equivalent to the rank of Deputy Director-General: (aa) Department of Defence; (bb) Department of Education; (cc) Department of Environmental Affairs and Tourism; (dd) Department of Trade and Industry; ( e e ) Department of Foreign Affairs; (f) Department of Justice and Constitutional Development; (gg) Department of Labour; (hh) Department of Safety and Security; and (ii) National Treasury; (iii) a representative, at least equivalent to the rank of Deputy Director-General, of the- (aa) National Intelligence Coordinating Committee; and (bb) South African Revenue Service; (iv) a person representing organised business; (v) a person representing organised labour; and (vi) up to five individual persons appointed by the Minister on the basis of their knowledge, experience and involvement pertain- ing to immigration law, control, adjudication or enforcement. ( h ) The Minister shall designate from the members of the Board a Chairperson and Deputy Chairperson of the Board.”; (b) by the deletion of subsection (3); ( c ) by the substitution in subsection (4) for the words preceding paragraph ( a ) of the following words: 30 35 40 45 50 55 14 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 ~~ ~~~ ~~ ~~ “A member of the Board referred to in subsection (2)[(k)] fa)(iv), (v) and [(Z)] (v1) shall-”; (d) by the substitution for subsection (5) of the following subsection: “ ( 5 ) The administrative work connected with the performance of the functions of the Board shall be performed by officers of the Department, 5 designated by the Director-General for that purpose.”; (e) by the deletion of subsection (6); and (f) by the deletion of subsection (8). Substitution of section 5 of Act 13 of 2002

6. The following section is hereby substituted for section 5 of the principal Act: 10 “Functions of Board

5. The Board shall- ( a ) advise the Minister in respect of- (i) (ii) (iii) the contents of regulations that may be made in terms of this Act; the formulation of policy pertaining to immigration matters; and any other matter relating to this Act on which the Minister may request advice; and 15 ( b ) serve as the interdepartmental cooperation forum for all immigration 20 matters.”. Repeal of section 6 of Act 13 of 2002

7. Section 6 of the principal Act is hereby repealed. Substitution of section 7 of Act 13 of 2002

8. The following section is hereby substituted for section 7 of the principal Act: 25 “Regulations 7. (1) The Minister may, after consultation with the Board, make regulations relating to- t the powers i d duties of immigration officers; the steps to be taken to prevent the entry of illegal foreigners into the facilitate the tracing and identification of illegal Republic and to foreigners in, and their removal from, the Republic; the procedure regulating the entry into and departure from the Republic of persons at a port of entry, and the requirements and conditions to be complied with at such a port; the times and places of, and the manner of conducting, an enquiry relating to, or the examination of, persons entering or desiring to enter the Republic or who, having been found in the Republic, are suspected of being prohibited persons or unlawfully resident therein; 30 35 16 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 ( e ) the permits and the certificates which may be issued under this Act, the requirements for the issuing of permits and certificates and the conditions to which such permits or certificates may be subjected, and the circumstances under which such permits or certificates may be cancelled or withdrawn; the conditions upon which prohibited persons may be allowed to pass through the Republic while journeying or being conveyed to a place outside the Republic; the forms of warrants, permits, certificates or other documents to be issued or used, or of declarations to be made, or of registers to be kept, for the purposes of this Act, and the particulars to be provided on or inserted in any such document, declaration or register; the fees that may be charged in respect of overtime services required to be performed by immigration officers; the fees that may be charged in respect of the application for and issuing of visas, permits and certificates and other services rendered in terms of this Act; the steps to be taken to prevent the departure from the Republic of a person not in possession of a passport or other appropriate documen- tation; the requirements and conditions which should be complied with by any person who, on behalf of any other person, applies for a permit referred to in sections 1 I to 22 and 25 to 27, and the registration of an immigration practitioner contemplated in section 46; the manner in which payment of 34(3) may be enforced; the steps to be taken to ensure proper exploitation of the local labour market before a work permit is issued in terms of section 19; the circumstances whereunder and the manner in which a penalty shall be incurred by and recovered from the owner, agent, charterer or person in control of a conveyance and who conveyed a foreigner contemplated in section 35(7) to the Republic; any matter that may be prescribed under this Act; and generally, any matter required for the better achievement of the objects and purposes of this Act. a deposit contemplated in section (2) Different regulations may be made under subsection (l)(c) in respect of different ports of entry, and the forms of warrants, permits, certificates, documents, declarations or registers prescribed under subsection (l)(g) may differ in respect of different categories of persons. (3) A regulation made under subsection (1) may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine, or to imprisonment for a period not exceeding 12 months. (4) The Minister may- (a) exempt a person or category of persons from paying fees prescribed under subsection (1 )(h); and (b) withdraw an exemption granted to a person or a category of persons under paragraph (a). (5) Any fee which may be prescribed under subsection (1) shall be concurrence of the Minister of prescribed by the Minister with the Finance.”. 5 10 15 20 25 30 35 t0 15 i0 18 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Substitution of section 8 of Act 13 of 2002

9. The following section is hereby substituted for section 8 of the principal Act: “Review and appeal procedures 8. (1) An immigration officer who refuses entry to any person or finds person to be an illegal foreigner shall inform that person on the prescr form that he or she may in writing request the Minister to review thal decision and- ( a ) if he or she arrived by means of a conveyance which is on the point of departing and is not to call at any other port of entry in the Republic. that request shall without delay be submitted to the Minister; or any ibed (b) in any other case than the one provided for in paragraph (a), that request shall be submitted to the Minister within three days after that decision. (2) A person who was refused entry or was found to be an illegal foreigner and who has requested a review of such a decision- ( a ) in a case contemplated in subsection ( l ) ( a ) , and who has not received an answer to his or her request by the time the relevant conveyance departs, shall depart on that conveyance and shall await the outcome of the review outside the Republic; or (6) in a case contemplated in subsection (l)(b), shall not be removed from the Republic before the Minister has confirmed the relevant decision. (3) Any decision in terms of this Act, other than a decision contemplated in subsection (I), that materially and adversely affects the rights of any person, shall be communicated to that person in the prescribed manner and shall be accompanied by the reasons for that decision. (4) An applicant aggrieved by a decision contemplated in subsection (3) may, within 10 working days from receipt of the notification contemplated in subsection (3), make an application in the prescribed manner to the Director-General for the review or appeal of that decision. ( 5 ) The Director-General shall consider the application contemplated in subsection (4), whereafter he or she shall either confirm, reverse or modify that decision. (6) An applicant aggrieved by a decision of the Director-General contemplated in subsection ( 5 ) may, within 10 working days of receipt of that decision, make an application in the prescribed manner to the Minister for the review or appeal of that decision. 5 10 15 20 25 30 55 (7) The Minister shall consider the application contemplated in subsection (6), whereafter he or she shall either confirm, reverse or modify that decision.”. Substitution of section 9 of Act 13 of 2002 40

10. The following section is hereby substituted for section 9 of the principal Act: “Admission and departure 9. (1) Subject to this Act, no person shall enter or depart from the Republic at a place other than a port of entry. (2) Subject to this Act, a citizen [or a resident] shall be admitted, 45 he or she identifies himself provided that prescribed manner] and[, in the case officer records his or her entrance. or herself as such [in the of a resident,] the immigration 20 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 (3) No person shall [leave] enter or depart from the Republic- unless in possession of a valid passport[, or a certificate issued by the Department upon application in lieu thereofl; unless, if he or she is a person under the age of 16 years who does not hold a passport, he or she is accompanied by his or her parent who holds a passport in which his or her name was entered in terms of the [provisions of the] South African Passports and Travel Documents Act, 1994 (Act No. 4 of 1994), or on behalf of any government or international organisation recognised by the Government of the Republic; [and] except at a port of entry, unless- (i) 5 10 in possession of a certificate issued by the [Department] Director-General granting permission upon application to [leave] enter or depart from the Republic at a place other than a port of entry within a certain period not exceeding six months 15 at a time. provided that for good cause [an immigration officer] the Director-General may withdraw such permission; or exempted as an individual or falling within a category of persons exempted by the Minister, [as he or she deems fit,] on 20 - the recommendation of the Director-General, which exemp- tion may be withdrawn by the [Director-General at any time] Minister; [and] (ii) unless[, in the case of a resident,] the entry or departure is recorded by an immigration officer[.]@ 25 (e) unless examined by an immigration officer as prescribed. (4) A foreigner who is not the holder of a permanent residence permit may only enter the Republic as contemplated in this section if- ( a ) [by producing to an immigration officer] his or her passport [to be] - is valid for [no] not less than 30 days after the expiry of the intended 30 stay[,l; and ( b ) [ifj issued with a valid temporary residence permit, as set out in this Act[, and may only depart as set out in this Act].”. Substitution of section 10 of Act 13 of 2002

11. The following section is hereby substituted for section 10 of the principal Act: 35 “Temporary residence permits 10. (1) Upon admission, a foreigner, who is not the holder of a permanent only if in residence permit, may enter and possession of a temporary residence permit issued by the Director-General. sojourn in the Republic (2) Subject to this Act, upon application [and upon prescribed 40 examination at the port of entry] in the prescribed manner and on the prescribed form, one of the temporary [residences] residence permits [set out] contemplated in sections 11 to 23 may be issued to a foreigner. 22 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 ( 3 ) If issued outside the Republic, a temporary residence permit is deemed to be of force and effect only after an admission. (4) A temporary residence permit is to be issued on condition that the holder is not or does not become a prohibited or an undesirable person. (5) The Director-General may [For] for good cause [, as prescribed, the 5 Department may] attach reasonable individual terms and conditions may be prescribed to a temporary residence permit. (6) Subject to this Act, a foreigner may apply to the Director-General in the prescribed manner and on the prescribed form to change his or her status or the conditions attached to his or her temporary residence permit, or both such status and conditions, as the case may be, while in the Republic. (7) Subject to this Act, the Director-General may, on application in the prescribed manner and on the prescribed form, extend the period for which a permit contemplated in subsection (2) was issued. (8) An application for a change in status does not provide a status and does not entitle the applicant to any benefit under the Act, except for those explicitly set out in the Act, or to soiourn in the Republic pending the decision in respect of that application. (9) The Director-General may at any time in writing notify the holder of a temporary residence permit issued in terms of this section that, subject to subsection (lo), the permit shall be cancelled for the reasons disclosed in the notice and that the holder is thereby ordered to leave the Republic within a period stated in that notice, and upon the expiration of that period the permit shall become null and void. (10) The holder of a temporary residence permit who receives a notice contemplated in subsection (9) may, before the expiration of the period stated in that notice, make representations to the Director-General which he or she shall consider before malung his or her decision.”. 10 15 20 25 Insertion of sections 10A and 10B in Act 13 of 2002

12. The following sections are hereby inserted in the principal Act after section 10: 30 “Visas 10A. (1) Any foreigner who enters the Republic shall, subject to subsections (2) and (4), on demand produce a valid visa, granted under 1 subsection ( 3 ) , to an immigration officer. (2) Any person who holds a valid permit issued in terms of sections 13 to 22 and 25 to 27 shall, upon his or her entry into the Republic and after having been issued with that permit, be deemed to be in possession of a valid visa for the purposes of this section. (3) A visa referred to in subsection (1)- may, subject to any condition that the Minister may deem fit, be granted by the Minister to any person who is not exempt, as contemplated in subsection (4), from the requirement of having to be in possession of a valid visa, and who has applied for such a visa in the prescribed manner and on the prescribed form; shall contain a statement to the effect that authority to proceed to the Republic to report to an immigration officer at a port of entry has been granted by the Minister to the holder of a passport, and such statement shall be endorsed in the passport concerned; and may for good cause be withdrawn and declared null and void by the Minister. 35 40 45 50 26 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Amendment of section 11 of Act 13 of 2002

13. Section 11 of the principal Act is hereby amended- (a) by the substitution for subsection (1) of the following subsection: “(1) A visitor’s permit may be issued for any purpose other than those provided for in sections 13 to 24, and subject to subsection (2), by the [Department] Director-General in respect of a foreigner who- (a) [holds a visa; or] complies with section 10A; and (b) [is a citizen of a foreign state prescribed from time to time and] 5 provides the financial or other guarantees prescribed [from time to time] in respect of her departure[,$ his 10 or [provided] Provided that such permit- (i) [cannot] may not exceed three months and upon application may be [Department,] Director-General for a further period renewed by the which shall not exceed three months; or (ii) may be issued by the [Department] Director-General upon application 15 for any period which may not [to] exceed three years to a foreigner who has satisfied the [Department] Director-General that he or she controls sufficient available financial resources, which may be prescribed [from time to time], and is engaged in the Republic in- (aa) % academic [sabbaticals] sabbatical; (bb) voluntary or charitable activities; (cc) research; or (dd) 9 other prescribed [activities and cases] activity.”; 20 ( b ) by the substitution for subsection ( 2 ) of the following subsection: “(2) The holder of a visitor’s permit may not conduct work, unless 25 authorised by the Director-General in the prescribed manner and sub-ject to the prescribed requirements and conditions.”; ( c ) by the deletion of subsections (3) and (4); (d) by the substitution for subsection (5) of the following subsection: “ ( 5 ) Special financial and other guarantees may be prescribed in respect of 30 the issuance of a visitor’s permit to certain prescribed classes of foreigners [prescribed from time to time].”; and ( e ) by the addition of the following subsection: “(6) Notwithstanding the provisions of this section, a visitor’s permit may be issued to a foreigner who is the spouse of a citizen or permanent resident and who does not qualify for any of the permits contemplated in sections 13 to 22: Provided that- (a) such permit shall only be valid while the good faith spousal relationship 35 exists; (b) on application, the holder of such permit may be authorised to perform 40 any of the activities provided for in the permits contemplated in sections 13 to 22; and ( c ) the holder of such permit shall apply for permanent residence contem- plated in section 26(b) within three months from the date upon which he or qualifies to be issued with permit.”. that she 45 Repeal of section 12 of Act 13 of 2002

14. Section 12 of the principal Act is hereby repealed. 28 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Amendment of section 13 of Act 13 of 2002

15. Section 13 of the principal Act is hereby amended- ( a ) by the substitution in subsection (1) for paragraph ( a ) of the following paragraph: “(a) the [Department] Director-General, as prescribed[,]; or[, at the option 5 of the applicant,]”; and ( b ) by the substitution for subsection (2) of the following subsection: “(2) The Director-General shall, [When] when so requested by[,] and after Education, [the Department shall] consultation with[,] the Department of determine an ad hoc fee for the issuance of study permits in respect of 10 institutions which are publicly funded or subsidised.”. Amendment of section 14 of Act 13 of 2002

16. Section 14 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: “(2) [The] A_ treaty may permit be issued by- 15 ( a ) the [Department] Director-General, as prescribed; or ( b ) the Department of Foreign Affairs or [the other] another organ of [State] E responsible for the implementation of the treaty concerned under a delegation from the [Department] Director-General, provided that- (i) information relating to the failure of such foreigner to comply with the 20 terms and conditions of the permit and to depart when required is conveyed to the [Department] Director-General; (ii) the organ of [State] state concerned satisfies the [Department] Director- General that, under the circumstances, it has the capacity to perform this function; and 25 (iii) the permit is issued in accordance with the prescribed requirements, procedures and forms [for the issuance scribed].”. of such permit are pre- Substitution of section 15 of Act 13 of 2002

17. The following section is hereby substituted for section 15 of the principal Act: 30 “Business permit issued by the 15. (1) A business permit may be [Department] Director-General to a foreigner intending to establish[,] or invest in, or who has established or invested in a business in the Republic in which he or she may be business permit to the members of [provided] Provided that- ( a ) such foreigner invests the prescribed financial or capital contribution such foreigner’s immediate family: appropriate permit for the duration of the 35 employed, and an in such business; ( b ) the contribution referred to in paragraph ( a ) [be] forms part of the 40 intended book value of such business; and [(c) a chartered accountant certifies compliance with the provisions of this Act,] [(d)](c) - such foreigner has undertaken to comply with any relevant registration requirement set out in any law administered by the South 45 African Revenue Service. (2) The holder of a business permit may not conduct work other than work related to the business in respect of which the permit has been issued. (3) The [Department] Director-General may reduce or waive the [capitalization] capitalisation requirements referred to in subsection (l)(a) 50 for businesses which are prescribed [from time to time] to be in the national interest, or when so requested by the Department of Trade and Industry. (4) The holder of referred to in subsection satisfaction of the Director-General that he or she has fulfilled the a business permit shall [cause the certification (l)(c) to be renewed] submit proof to the 55 30 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 requirements contemplated in subsection (l)(a) within 24 months of the issuance of the permit, and within every two years thereafter. ( 5 ) A business permit may be issued to a foreigner for more than one entry [to a person] if multiple entries into the Republic by that [person] foreigner over a period of time are necessary for that [person] foreigner to conduct the business in question effectively.”. 5 Amendment of section 16 of Act 13 of 2002

18. Section 16 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection: “( 1) The Director-General may, as prescribed, issue a crew permit to a foreigner 10 who is a member of the crew of a conveyance.”. Amendment of section 17 of Act 13 of 2002

19. Section 17 of the principal Act is hereby amended by the substitution for subsection ( 2 ) of the following subsection: “ ( 2 ) When so requested by[,] and after consultation with[,] the Department of 15 Health, the [Department] Director-General shall determine an ad hoc fee for the issuance of medical treatment permits in respect of institutions which are publicly funded or subsidised.”. Amendment of section 18 of Act 13 of 2002

20. Section 18 of the principal Act is hereby amended by the substitution for 20 subsection (1) of the following subsection: “(1) A relative’s permit may be issued for the prescribed period by the [Department] Director-General to a foreigner who is a member of the immediate family of a citizen or a permanent resident, provided that such citizen or permanent resident provides the prescribed financial assurance[, (a) certified by a chartered accountant, or, at the applicant’s option, (b) to be corroborated by relevant documentation to be evaluated by the such Department that he or she has the means available to support foreigner for the requested duration of such permit, either personally or contribution through the of such foreigner].”. 25 30 Substitution of section 19 of Act 13 of 2002

21. The following section is hereby substituted for section 19 of the principal Act: “Work permit 19. (I) A quota work permit may be issued by the [Department] Director-General, as prescribed, to a foreigner if the foreigner falls within a 35 specific professional category or within a specific occupational class determined by the Minister at least annually by notice in the Gazette after consultation with the Ministers of Labour and Trade and Industry, and as long as the number of work permits so issued for such category or class notice. the in does not exceed the quota determined 40 32 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 ( 2 ) A general work permit issued by the [Department] may be Director-General to a foreigner not falling within a category or class contemplated in subsection (1) if the prospective employer- 5 satisfies the [Department] Director-General in the manner prescribed that despite diligent search he or she has been unable to employ a person in the Republic with qualifications or skills and experience equivalent to those of the applicant; produces certification from a chartered accountant that the terms and conditions under which he or she intends to employ such foreigner, including salary and benefits, are not inferior to those 10 prevailing in the relevant market segment for residents, taking into account applicable agreements and other applicable standards, Department of Labour, if any, provided that- (i) citizens and collective bargaining as recorded by the to aprescribed 15 a copy of such certification shall be conveyed office of the Department of Labour; and (ii) such certification shall lapse if objected to for good cause by such office of the Department of Labour within 15 calendar days of its receipt;] such by (b) satisfies the Director-General in the prescribed manner that the terms 20 and conditions under which he or she intends to employ that foreigner, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens, takmg into account applicable collective bargaining agreements and other applicable standards; and (c) has [committed] agreed in writing to notify the [Department] 25 Director-General when such foreigner is no longer employed or is employed in a different capacity or rolel[; and (d) has submitted a certification from a chartered accountant of the job description and that the position exists and is intended to be filled foreigner.] 30 (3) A general work permit contemplated in subsection (2) shall lapse if, of its issuance, and within every year thereafter, its within six months holder fails to submit satisfactory proof to the [Department] Director- General [certification from his or her employer’s chartered accountant] that he or she is still employed and of the terms and conditions of his or her 35 employment, including the job description: Provided that a general work permit shall remain valid for a period not longer than six months in respect of a holder whose employment contract has been terminated until that holder has exhausted all applicable rights of recourse: Provided further that the period may be extended for further periods of three months at a time on 40 submission of proof to the satisfaction of the Director-General that, due to circumstances beyond the control of the holder, the recourse procedures have not been finalised. (4) Subject to any prescribed requirements, an exceptional skills work by the [Department] Director-General to an 45 permit may be issued individual [of] possessing exceptional skills or qualifications and to those members of his or her immediate family determined by the [Department] Director-General under the circumstances or [by regulation] as may be prescribed. (5) An intra-company transfer work permit may be issued by the [Department] Director-General to a foreigner who is employed abroad by a business operating in the Republic in a branch, subsidiary or affiliate relationship and who by reason of his or her employment is required to conduct work in the Republic for a period not exceeding two years, provided that- 50 55 34 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 [(a) a chartered accountant acting on behalf of the employer of such foreigner certifies that the foreigner within the Republic and such foreigner’s tion;] employer needs to employ such job descrip- [@)I@ the employer undertakes that it will take [adequate or] prescribed measures to ensure that such foreigner will at all times comply with the provisions of this Act, and will immediately notify the [Depart- ment] Director-General if it has reason to believe otherwise; and 5 [(c)]W the employer furnishes the prescribed financial guarantees to defray deportation and other costs should such foreigner fail to depart 10 when no longer allowed to sojourn in the Republic. (6) The holder of an intra-company transfer work permit may conduct work only for the employer referred to in subsection ( 5 ) and in accordance with the Qob description and other elements contemplated in the certification referred to in subsection (5) or] requirements set out in his 15 or her permit.”. Substitution of section 21 of Act 13 of 2002

22. The following section is hereby substituted for section 21 of the principal Act: “Corporate permit 21. (1) A corporate permit by the [Department] Director-General to a corporate applicant to employ foreigners who may conduct work for such corporate applicant. may be issued 20 ( 2 ) After consultation with the Departments of Labour and [ofl Trade and Industry, the [Department] Director-General shall determine the maximum number of foreigners to be employed in terms of a corporate permit by a corporate applicant, after having considered- [(a) the certification prepared by a chartered accountant on the basis 25 of of the Department of the relevant prescription or information Labour, if any, that at any given time the relevant foreigners are employed on terms and conditions not inferior to those offered to 30 citizens and residents or prevailing in the relevant market segment, taking into account collective bargaining agreements and other standards, if any;] [@)I@ the undertaking by the corporate applicant that it will- (i) (ii) take [adequate or] prescribed measures to ensure that any foreigner employed in terms of the corporate permit will at [any time] all times comply with the provisions of this Act and the corporate permit; and immediately notify the [Department] Director-General if it has reason to believe that such foreigner is no longer in compliance [above]; with subparagraph [(i)] [(c)]@ the financial guarantees posted in the prescribed amount and form by the corporate applicant to defray deportation and other costs should the corporate permit be withdrawn, or certain foreigners fail to leave the Republic when no longer subject to the corporate permit; and [(d)]@) corroborated representations made by the corporate applicant in respect of the need to employ foreigners, their job descriptions, the number of citizens or permanent residents employed and their positions, and other prescribed matters. 35 40 45 ( 3 ) The [Department] Director-General may withdraw or [modify] 50 amend [the] corporate permit for good and reasonable cause. (4) The Minister may, [In] after consultation with the Minister of Trade and Industry or Minerals and Energy or Agriculture, as the case may be, the Minister of Labour, [may] designate certain industries, or segments thereof, in respect of which the Government may- (a) reduce or waive the requirements of subsection (2)[(d)]M; [or] (b) enter into agreements with one or more foreign states and set as a 55 condition of a corporate permit that its holder- 36 No. 26901 GOVERNMENT GAZE’ITE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 (i) (ii) employs foreigners partially, mainly foreign countries; and remits a portion of the salaries of such foreigners to such foreign countries; or wholly from such (c) apply this subsection in respect of foreigners required for seasonal or 5 temporary peak period employment; or (d) waive or reduce the requirement of subsection (2)[(c)]m under special conditions. ( 5 ) The holder of a corporate permit may also employ foreigners in terms of section 19.”. 10 Amendment of section 22 of Act 13 of 2002

23. Section 22 of the principal Act is hereby amended- ( a ) by the substitution for paragraph (a) of the following paragraph: “ ( a ) participating in a programme of cultural, economic or social exchange, organised or administered by an organ of [State] state or a [public higher 15 education] learning institution, in conjunction with a learning institution - or an organ of a foreign state, provided that- (i) such organ of [State] state [after consultation with the Board, the Minister may delegate the authority to issue such permits to] or learning institution [if such organ of State has satisfied the Minister that it can ensure the compliance of such foreigner with this Act and report] reports to the [Department] Director-General on the stages and the completion of the relevant programme together with other prescribed information; and it may be prescribed that, in respect of certain programmes, upon 25 expiration of such permit such foreigner may not qualify for a status until he or she has complied with the requirement of a prescribed period of physical presence in his or her foreign country or of domicile outside the Republic; or”; and 20 (ii) ( b ) by the substitution in paragraph (b) for subparagraph (iii) of the following 30 subparagraph: ‘‘(iii) such foreigner may not qualify for a [temporary or] permanent residence permit [until he or she has spent two years outside the Republic] within two years after the expiry of the exchange permit, which requirement may be waived by the [Department] Director- 35 General in extraordinary circumstances.”. 38 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Substitution of section 23 of Act 13 of 2002

24. The following section is hereby substituted for section 23 of the principal Act: “Asylum transit permit 23. (IJ The [Department] Director-General may issue an asylum transit permit to a person who at a port of entry claims to be an asylum seeker [subject to the Refugees Act, 1998 (Act No. 130 of 199S)], which permit shall be valid for a period of 14 days only [on any prescribed terms and conditions]. in any other law, when (2) Despite anything contained the permit contemplated in subsection (1) expires before the holder reports in person to a Refugee Reception Officer at a Refugee Reception Office in order to apply for asylum in terms of section 2 1 of the Refugeesxct, 1 9 x ( A c t . 130 of 1998), the holder of that permit shall become an illegal foreigner and be dealt with in accordance with this Act.”. Substitution of section 24 of Act 2002 13 of

25. The following section is hereby substituted for section 24 of the principal Act: 5 10 15 “Cross-border and transit [passes] permits 24. (1) The [Department] Director-General may issue a cross-border [pass with the same effect as a multiple admission visitor’s] permit to a citizen or a permanent resident or a foreigner who is a citizen or a resident 20 of a prescribed foreign country with which the Republic shares a border has received aprescribed identity [and who does not hold apassport but document by the Department and is registered with the Department]. (2) The [Department] Director-General may issue a transit [visa] permit authorking= (g) a foreigner travelling to a foreign country to make use of the transit 25 facilities at a port of entry[.];r (b) a foreigner to travel from a port of entry through the Republic to a foreign country.”. section of Amendment Act 25 of 2002 13 of

26. Section 25 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection: “(3) A permanent residence permit [is to] shall be issued on condition that the holder is not a prohibited or an undesirable person, and subject to section 28 [of this Act].”. 30 35 40 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Substitution of section 26 of Act 13 of 2002

27. The following section is hereby substituted for section 26 of the principal Act: “Direct residence

26. Subject to section 25, the [Department shall] Director-General may residence permit to a foreigner w h o - issue a permanent ( a ) has been the holder of a work permit, including one issued under a corporate permit, in terms of this Act for five years and has proven to the satisfaction of the Director-General that he or she has received an offer for permanent employment[, provided that- (i) such foreigner submitted a certification from his or her 5 10 prospective permanent employer’s chartered accountant of exists and is the job description and that the position intended to be filled by suchforeigner; and (ii) the Department of Labour certifies that the terms and conditions of such offer, including salary and benefits, are 15 not inferior to those prevailing in the relevant market segment for applicable collective bargaining agreements and other stan- dards]; citizens and residents, taking into account ( b ) [is] has been the spouse of a citizen or permanent resident for five 20 years[, provided that] and the Director-General is satisfied that a good faith spousal relationship exists: Provided that such permit shall lapse if at any time within two years from the issuing of that permit the good faith spousal relationship no longer subsists, save for the case of death [(i) good faith spousal is satisfied that a the Department relationship exists; and 25 (ii) such permit is issued on condition that it shall lapse if at any time within three years from its application the good faith spousal relationship no longer subsists, save for the case of 30 death]; ( c ) is a child under the age of 2 1 of a citizen or permanent resident [under the age of 211, provided that such permit shall lapse if such foreigner does not submit an application for its confirmation within two years of 21 years of age; or her his or having turned 35 (d) is a child of a citizen.”. Substitution of section 27 of Act 13 of 2002

28. The following section is hereby substituted for section 27 of the principal Act: “Residence on other grounds

27. The [Department] Director-General may issue a permanent resi- 40 dence permit to a foreigner of good and sound character w h o - ( a ) has received an offer for permanent employment, provided that- 42 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT. 2004 (i) such foreigner [submitted a certification from a chartered accountant acting on behalf of suchforeigner’s prospective permanent employer] has proven to the satisfaction of the Director-General that the position exists and that the position and related job description was advertised in the prescribed form and no suitably qualified citizen or permanent resident was available to fill it; 5 [(ii) the Department of Labour certifies that the terms and conditions of such offer, including salary and benefits, are not inferior to those prevailing segment for citizens or residents, taking applicable collective bargaining agreements and standards, if any;] into account other in the relevant market [(iii)]U the application falls within the yearly limits of available permits prescribed [from time to time] for each sector of industry, trade and commerce, after consultation with the Departments of Trade and Industry, Labour and Education; and [(iv)](nl) the permit may be extended to such foreigner’s spouse and children younger than 21 years of age; taking into account any prescribed requirement, has demonstrated to the satisfaction of the [Department] Director-General that he or she possesses extraordinary skills or qualifications, and to those members of such foreigner’s immediate family determined by the [Department] Director-General under the circumstances or [by regulation] as may be prescribed; intends to establish or has established a business in the Republic investing in it or in an established business the prescribed financial contribution to be part of the intended book value [as certified by a chartered accountant], and to the members of such foreigner’s immediate family, provided that- (i) the [Department] Director-General may waive or reduce such [from capitalisation requirements for businesses prescribed time to time] to be in the national interest or when so requested by the Department of Trade and Industry; and the permit shall lapse if the holder fails to [renew such certification] prove within two years of the issuance of the years thereafter, to the satisfaction of the permit[,] and three Director-General, that the prescribed financial contribution to be part of the intended book value is still invested as contemplated in this paragraph; (ii) is a refugee referred to in section 27(c) of the Refugees Act, 1998 (Act No. 130 of 1998), subject to any prescribed requirement; intends to retire in the Republic, provided accountant acting on behalf of such foreigner certifies that] such foreigner proves to the satisfaction of the Director-General that he or she- - (i) has the right to a pension or an irrevocable annuity or retirement account which will give such foreigner a prescribed minimum payment for the rest of his or her life; or that [a chartered (ii) has a minimum prescribed net worth; 10 15 20 25 30 35 40 45 50 44 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 rf) has [provided a certification by a chartered accountant] proven to the satisfaction of the Director-General that he or she has a prescribed minimum net worth and has paid a prescribed amount to the [Department] Director-General; or ( g ) is the relative of a citizen or Emanent resident within the first step of 5 kinship.”. Amendment of section 28 of Act 13 of 2002

29. Section 28 of the principal Act is hereby amended- ( a ) by the substitution for the heading to the section of the following heading: residence permanent of ( 6 ) by the substitution for paragraph (a) of the following paragraph: “Withdrawal permit”; “ ( a ) [within four years convicted of any and 2;”; of the issuance of such permit, has been] of the offences listed in [Schedule] Schedules 1 (c) by the substitution for paragraph (b) of the following paragraph: “(b) has failed to comply with the terms and conditions of his or her permit;”: and 10 15 (d) by the substitution in paragraph (c) for subparagraph (iii) of the following subparagraph: “(iii) the Minister[, on recommendation of the Director-General,] may 20 grant an exemption from the requirement of residence in respect of certain residents or class of residents;”. Substitution of section 29 of Act 13 of 2002

30. The following section is hereby substituted for section 29 of the principal Act: “Prohibited persons 25 29. (1) The following foreigners are prohibited persons and do not qualify for a visa, admission into the Republic, a temporary or a permanent residence permit: ( a ) [those] Those infected with or carrying infectious, communicable or other diseases or viruses as prescribed [from time to time]: 30 ( b ) anyone against whom a warrant is outstanding or a conviction has been secured in the Republic or a foreign country [with which the Republic has regular diplomatic relations] in respect of genocide, terrorism, murder, torture, [drug trafficking] drug-related charges, money laundering or kidnapping; ( c ) anyone previously deported and not rehabilitated by the [Department] 35 Director-General in the prescribed manner; ( d ) a member of or adherent to an association or organisation advocating the practice of racial hatred or social violence; [and] (e) anyone who is or has been a member of or adherent to an organisation 40 or association utilising crime or terrorism to pursue its ends[.]& If) anyone found in possession of a fraudulent residence permit, passport or identification document. ( 2 ) [After consultation with the] The Director-General may, for good cause [the Minister may], declare a person referred to in subsection (1) not 45 to be a prohibited person.”. GAZETTE, No. GOVERNMENT 26901 46 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Substitution of section 30 of Act 13 of 2002

31. The following section is hereby substituted for section 30 of the principal Act: “Undesirable persons 30. (1) The following foreigners may be declared undesirable by the [Department] Director-General, as prescribed, and after such declaration, do not qualify for a visa, admission into the Republic, a temporary or a permanent residence permit: (a) [anyone] Anyone who is or is likely to become a public charge; (b) anyone identified as such by the Minister [after consultation with the 5 Board, or in the case of urgency, by the Minister who, in such cases, 10 shall inform the Board as soon as practicable]; (c) anyone who has been judicially declared incompetent; (d) an unrehabilitated insolvent; (e) anyone who has been ordered to depart in terms of this Act; u) anyone who is a fugitive from justice; and (g) anyone with previous criminal convictions without the option of a fine an offence in the Republic, with the 15 for conduct which would be exclusion of certain prescribed offences. ( 2 ) Upon application [from] b~ the affected person, the [Department] Minister may, for good cause, waive any of the grounds of undesirability 20 [provided that it reports such decisions to the Minister and the Board, with reasons].”. Amendment of section 31 of Act 13 of 2002

32. Section 31 of the principal Act is hereby amended- (a) by the substitution in subsection (1) for paragraph (b) of the following 25 paragraph: “(b) the officers and crew of foreign state, while such [ship] conveyance is in & port of entry.”; [an official] a public [ship] conveyance of a (b) by the substitution for subsection ( 2 ) of the following subsection: “ ( 2 ) Upon application, the Minister[, as he or she deems fit, after 30 consultation with the Board,] may under terms and conditions determined by him or her- (a) allow a distinguished visitor and certain members of his or her immediate family and members in his or her employ or of his or her household to be admitted to and sojourn in the Republic [for a period not exceeding six 35 months1,provided that such foreigners do not intend to reside in the Republic permanently; (b) grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circum- stances exist which would justify such a Provided that the Minister may- (i) exclude one or more identified foreigners from such categories; and for good cause, withdraw such rights from a foreigner or a category (ii) of foreigners; decision[;]; [provided] 40 48 No. 26901 GOVERNMENT GAZETTE, I8 OCTOBER 2004 ~ ~- Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 [(c) authorise any person or category of persons to enter the Republic a t a place other than aport of entry, in which case the Department shall issue to such person(s) the prescribed written permission orpassport endorsement, provided that such authorisation may any time by the Minister; and] be withdrawn a t 5 [(d)]pJ for good cause, waive any prescribed requirement or form[, provided that if such consultation requirement would unduly delay an urgent action, the Minister may inform the Board after the fact of any action taken under this subsection and of the reasons for the urgency.]@ (d) for good cause, withdraw an exemption granted by him or her in terms of 10 this section.”; and (c) by the addition of the following subsection: Y “(3) The provisions of sections 10 and 25 shall not apply to a foreigner- who prior to 1 February 1937 lawfully entered the Republic for the I purpose of permanent residence therein; who by virtue of the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), enjoys any immunities and privileges in the Republic; or to whom a written authority or permission to enter the Republic has been issued in terms of section 1 or 3 of the Immigration QuotaAct, 1930 (Act 20 No. 8 of 1930), and who entered the Republic within the period stated in that authority or permit or within that period as lawfully extended.”. 15 Amendment of section 32 of Act 13 of 2002

33. Section 32 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection: “( 1) Any illegal foreigner shall depart, unless authorised by the [Department] Director-General in the prescribed manner to remain in the Republic pending his or her application for a status.”. Amendment of section 33 of Act 13 of 2002

34. Section 33 of the principal Act is hereby amended- by the substitution for subsection (1) of the following subsection: “( 1) An inspectorate [shall be] is hereby established [through regulations] and shall consist of [such] the persons, including immigration officers, [as may be] determined by the Minister.”; by the substitution for subsection (2) of the following subsection: “(2) (a) [On the recommendation of the Director-General, the] The Ministershall appoint the head of the inspectorate. (b) The Director-General shall appoint immigration officers and other persons required to exercise the functions of the inspectorate. prescribe- (c) The Minister may (i) the procedure to be followed in the appointment of immigration officers or categories of immigration officers; (ii) the requirements for the appointment contemplated in subparagraph 25 3b 35 40 (i); and (iii) the allocation of functions to immigration officers or categories of 45 immigration officers.”; and 50 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 (c) by the substitution for subsection (4) of the following subsection: “(4) An immigration officer may, for the purposes of this Act- at any time before the commencement or inthe course of an investigation conduct an inspection in loco in accordance with subsections (5) and (9); by notice in writing call upon any person who is in possession of or has the custody of or control over any thing which in the opinion of the [Department] Director-General is relevant to the investigation to produce such thing, and the [Department] Director-General may inspect and retain any thing so produced for a reasonable time; and by notice in writing call upon any person [Department] Director-General and to questions relevant to the subject matter of the investigation[,]: give evidence or to answer to appear before the [provided] Provided that any of such notices shall specify the timewhen and the place where the person to whom it is directed shall appear, be signed by an immigration officer, be served by an immigration officer or [by] a sheriff by delivering a copy thereof to the person concerned or by leaving it at such person’s last known place of residence or business, and shall specify the the [article] thlng is to be produced or the evidence is to be reason why given.”. Amendment of section 34 of Act 13 of 2002

35. Section 34 of the principal Act is hereby amended- 5 10 15 20 by the substitution in subsection (1) for the words preceding paragraph (a) of the following words: “Without need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her [the] 2 place [under the control o r to be detained in a manner and at administration of the Department] determined by the Director-General, provided that the foreigner concerned-”; by the substitution in subsection (5) for the words preceding paragraph (a) of the following words: “Any person other than a citizen or a permanent resident who having been-”; by the addition of the following subsection: “( 1 I ) A person detained on a ship may not be held in detention for longer and 25 30 35 than 30 days without an order of court.”. Substitution of section 35 of Act 13 of 2002

36. The following section is hereby substituted for section 35 of the principal Act: “[Ships] Duties with regard to conveyances 40 35. (1) Save for extraordinary circumstances necessitating otherwise, no [master] person in charge of a conveyance shall cause [his or her ship] that conveyance to enter the Republic [by landing or shoring] at any place other than a port of entry. 52 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 (2) An immigration officer or other authorised person employed by the [Department] Director-General may- (a) board any [ship] conveyance which is entering or has entered into any port of entry and for good cause prohibit or regulate disembarkation from, or the offloading of, such [ship] conveyance in order to ascertain the status or citizenship of its passengers; and 5 (b) request the person in control of a port of entry or any person acting under his or her authority to order the [master] person in charge of a conveyance to park, moor or anchor [his or her ship] that conveyance in such port of entry at such distance from the shore or landing place 10 or in such position as he or she may direct. (3) The [master of a ship] person in charge of a conveyance entering g prior to entering a port of entry shall upon demand [shall] deliver to an immigration officer- (a) a list 15 (i) (ii) the names of all passengers on board the [ship] conveyance, classified according to their respective destinations; and such other details as may be prescribed [from time to time]; ( b ) a list of stowaways, if any have been found; (c) a list of the crew and all other persons, other than passengers and 20 stowaways, employed, carried or present on the [ship] conveyance; and stating- (d) a return, under the hand of the [ship] conveyance or, if there is no such medical officer, under the hand of the [master] person in charge of a conveyance stating- (i) medical officer of that himself or herself, 25 any cases of disease, whether infectious or otherwise, which have occurred or are suspected to have occurred upon the voyage; the names of the persons from such disease; details of any birth or death which occurred upon the voyage between such port of entry and a previous port; and any other prescribed matter or event[,]: who have suffered or are suffering 30 (ii) (iii) (iv) immigration officer may- [provided] Provided such that (aa) exempt from the requirements of this subsection the master of a ship destined for any other port in the Republic, subject to compliance with the duty to deliver such lists or return at such port and with any directive such immigration officer may issue to the master; and 35 (bb) if satisfied that a name should be added to or deleted from any of such 40 lists, authorise such addition or deletion. (4) If a [ship] conveyance arrives at a port of entry with a passenger on board bound for a destination outside the Republic who is not on board when the [ship] conveyance leaves such port of entry and has not been admitted, the [master] person in charge or the owner of that [ship] 45 conveyance shall forfeit a sum fixed by the immigration officer within a prescribed limit. 54 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 ( 5 ) An immigration officer may require the [master of a ship] person in charge of a conveyance to muster the crew of such [ship] conveyance on the arrival of such [ship] conveyance in any port of entry and again before it leaves such port of entry. (6) The competent officer of customs at any [harbour] port of entry may refuse to give to the [master of any ship] person in charge of a conveyance clearance papers to leave that [harbour] port of entry, unless he or she has complied with [the provisions ofJ this Act and produced a certificate of an immigration officer to that effect. 5 (7) A [master] person in charge of a conveyance shall ensure that any 10 foreigner conveyed to a port of entry= &! for purposes of travelling to a foreign countryl holds a valid passport and transit visa, if required[.]@ (b) holds a valid passport and visa, if required. (8) A person in charge of a conveyance shall be responsible for the 15 detention and removal of if such person is refused a person conveyed admission in the prescribed manner, as well as for any costs related to such detention and removal incurred by the Department.”. Repeal of section 36 of Act 13 of 2002

37. Section 36 of the principal Act is hereby repealed. 20 Repeal of section 37 of Act 13 of 2002

38. Section 37 of the principal Act is hereby repealed. Substitution of section 40 of Act 13 of 2002

39. The following section is hereby substituted for section 40 of the principal Act: “Keeping of registers of lodgers by certain persons 40. (1) The person in charge of any premises, whether furnished or unfurnished, where lodging or sleeping accommodation is provided for payment or reward shall, if those premises fall within a prescribed class, in the prescribed manner keep a register of all persons who are provided with lodging or sleeping accommodation thereon, and every such person shall sign the register and furnish therein the prescribed particulars regarding himself or herself. (2) Every person in charge of premises referred to in subsection (1) shall, when required to do so by an immigration officer or police officer, produce the register referred to in that subsection for inspection. (3) Any person w h o - ( a ) contravenes or fails to comply with a provision of subsection (1) or (2); (b) gives false or incorrect particulars for the purposes of subsection (1); or (c) hinders any officer referred to in subsection (2) in the performance of his or her functions, liable on conviction shall be guilty imprisonment for a period not exceeding 12 months.”. of an offence and to a fine or to 25 30 35 40 56 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Substitution of section 41 of Act 13 of 2002

40. The following section is hereby substituted for section 41 of the principal Act: “Identification 41. (1) When so requested by an immigration officer or a police officer? any person shall identify himself or herself as a citizen, permanent resident or foreigner [when so requested by an immigration officer or a police officer], and if on reasonable grounds such immigration officer or [a] police officer is not satisfied that such person is entitled to be in the Republic, person may be interviewed by an immigration officer or a police officer about his or her identity or status, and such immigration officer or [a] police officer may take such person into custody without a warrant, and shall take reasonable steps, as may be prescribed, to assist the person in verifying his or her identity or status, and thereafter, if necessary detain him or her in [a prescribed manner and place until such person’s prima facie status or citizenship is ascertained] terms of section 34. ( 2 ) Any person who assists a person contemplated in subsection (1) to evade the processes contemplated in that subsection, or interferes with such processes, shall be guilty of an offence.”. 5 10 15 Amendment of section 43 of Act 13 of 2002

41. Section 43 of the principal Act is hereby amended by the substitution for 20 paragraph (a) of the following paragraph: “ ( a ) abide by the terms and conditions of his or her status, including any terms and [Department] Director- conditions attached to the relevant permit by the General upon its issuance, extension or renewal, and that status shall expire upon the violation of those conditions; and”. 25 Substitution of section 44 of Act 13 of 2002

42. The following section is hereby substituted for section 44 of the principal Act: “Organs of [State]

44. When possible, any organ of [State] ga& shall endeavour to ascertain the status or citizenship of the persons receiving its services and shall report to the [Department] Director-General any illegal foreigner, or any person whose status or citizenship could not be ascertained, [advising through of such reporting public notices or directly the person concerned practice,] provided that such requirement shall not prevent the rendering of services to which illegal foreigners and foreigners are entitled under the Constitution or any law[, including the law of contract].”. 30 35 58 No. 26901 GAZETTE, GOVERNMENT 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Substitution of section 45 of Act 13 of 2002

43. The following section is hereby substituted for section 45 of the principal Act: “Other institutions

45. Prescribed institutions or persons other than organs of [State] may, in the prescribed manner, be required [by regulation] to endeavour to ascertain the status or citizenship of the persons with whom they enter into commercial transactions, as prescribed, and shall report to the [Depart- ment] Director-General any illegal foreigner, or any person whose status or citizenship could not be ascertained, provided that such requirement shall not prevent the rendering of illegal foreigners and foreigners are entitled under the Constitution or any law[, including the law of contract].”. services or performance to which 5 10 Repeal of section 47 of Act 13 of 2002

44. Section 47 of the principal Act is hereby repealed. Amendment of section 49 of Act 13 of 2002

45. Section 49 of the principal Act is hereby amended- by the substi&ion for subsections (1) and ( 2 ) of the following subsections, respectively: “( I)(a) Anyone who enters or remains in, or departs from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding three months. (b) Any illegal foreigner who fails to depart when so ordered by the [Department] Director-General, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding nine months. (2) Anyone who knowingly assists a person to enter or remain in, or depart from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year.”; by the substitution for subsections (6), (7), (8) and (9) of the following subsections, respectively: “(6) Anyone failing to comply with one of the duties or obligations set out under sections [42] 2 to 46 [of this Act], shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding 18 months. (7) Anyone participating in a conspiracy of two or more persons to conduct an activity intended to [violate] contravene this Act [repeatedly], shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years, provided that if part of such activity is conducted or intended to be conducted in a foreign country, the offence shall be punishable by imprisonment not exceeding four years without the option of a fine. (8) Anyone who wilfully or through gross negligence produces a false certification contemplated by this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year[, and shall be suspended from the relevant professional association for a period not exceeding two years]. 15 20 25 30 35 40 60 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 (9) Anyone, other than a duly authorised civil servant, who [produces] manufactures or provides or causes the manufacturing or provision of a document purporting to be the Department, shall be guilty of an offence and liable on conviction to a fine or to a document issued or administered by years.”; exceeding two imprisonment not 5 (c) by the substitution in subsection (11) for the expression “37(10)” of the expression “34( IO)”; (d) by the substitution for subsection (12) of the following subsection: “( 12) A [Court] may make an order as to costs in favour of the Department to the extent necessary to defray the [costs] expenses referred to 10 in section [37]%(3) against- (a) any illegal foreigner referred ( b ) any person who contravened section [45] 38 or 42; (e) any person who required to in [subsection] section [37]34(3); conveyed into the Republic a foreigner without the - or 15 visa; transit (d) any person who committed an offence contemplated in [subsections] subsection (5), (7), (8) or (IO), which order shall have the effect of a civil iudgment of that court.”; and ( e ) by the addition of the following subsections: - “(13) Any person who pretends to be, or impersonates, an immigration officer shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years. (14) Any person who or remaining in, or for the purpose of entering departing from, or of facilitating or assisting the entrance into, residence in or departure from, the Republic, whether in contravention of this Act or not, commits any fraudulent act or makes any false representation by conduct, statement or otherwise, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years. 20 25 (15) Any person who- (a) for the purpose of entering the Republic, or of remaining therein, in 30 contravention of this Act, or departing from the Republic, or of assisting any other person so as to enter or so to remain or so to depart, utters, uses or attempts to use- (i) any permit, certificate, written authority or other document which lawful authority, or which, though issued by has been issued by lawful authority, he or she is not entitled to use; or (ii) any fabricated or falsified permit, certificate, written authority or other document; or ( 6 ) without sufficient cause has in his or her possession- (i) any stamp or other instrument which is used or capable of being used for purposes of fabricating or falsifying or unlawfully recording on any document any endorsement under this Act or required to be submitted in terms of this Act; (ii) any form officially printed for purposes of issuing any permit, certificate, written authority or other document under this Act or required to be submitted in terms of this Act, or any reproduction or imitation of any such form; 35 40 45 62 No. 26901 GOVERNMENT GAZETTE, 18 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 (iii) any passport, travel document, identity document or other docu- ment used for the facilitation of movement across borders, which is blank or reflects particulars other than those of the person in whose possession it is found; or (iv) any fabricated or falsified passport, travel document, identity document or other document used for the facilitation of movement across borders, shall be guilty of an offence and imprisonment for a period not exceeding four years. liable on conviction to a fine or to (16) Any person w h o - (a) contravenes or fails to comply with any provision of this Act, if such contravention or failure is not elsewhere declared an offence, or if no penalty is prescribed in respect of an offence: or (b) commits any other offence under this Act in respect of which no penalty is elsewhere prescribed, shall be guilty of an offence and imprisonment not exceeding two years.”. liable on conviction to a fine or to Amendment of section 50 of Act 13 of 2002

46. Section 50 of the principal Act is hereby amended by the substitution for subsection ( 3 ) of the following subsection: “(3) Any owner or [master of a ship] person in charge of a conveyance who of section 3 5 m shall be liable to an through negligence contravenes the provisions administrative fine of a prescribed amount not exceeding R10 000, which fine shall be imposed by the [Department] Director-General.”. General 20 25

47. The principal Act is hereby amended- (a) by the substitution for italic type-face of ordinary type-face wherever it occurs in the text of the principal Act, excluding numbers; and (b) by the substitution for the word “Department” of the word “Director- General” in sections 13(1) and (3), 17(1), 20(2), 22, 25(4), 28, 33(13), 34(3) 30 and (9), 38(4), 46(2) and (3) and 50( 1) and (2), wherever it occurs. Substitution of Schedule 3 to Act 13 of 2002

48. The following Schedule is hereby substituted for Schedule 3 to the principal Act: “[Laws] A A repealed [or amended] No. and year of [law] A S Short title Extent of the repeal [or amendment] 35 Act No. 96 of 1991 Control Act, 1991 The whole repealed Aliens No. 75 of 1995 Act, 1995 The whole repealed Aliens Control Amendment Act 40 64 No. 26901 GAZETTE, GOVERNMENT I8 OCTOBER 2004 Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004 Transitional provisions 49. (1) Subject to this section- (a) the provisions of this Act shall not affect anything done or omitted in terms of the principal Act before the date of commencement of this Act; and ( b ) anything done under the provisions of the principal Act prior commencement of this Act, which can be done under the principal Act as amended by this Act, shall be deemed to have been done under the principal Act as amended by this Act. to the 5 ( 2 ) Despite section 4(7) of the principal Act, the Minister may on or after the date of commencement of this Act dissolve the Board and appoint a new Board: Provided that 10 the tenure of the Board and Chairperson shall continue until such appointment becomes effective. (3) The staff appointed by the Board prior to the commencement of this Act shall be deemed to have been designated by the Director-General in terms of this Act. (4) All matters in respect of exemptions for consultation with the Board which were 15 pending upon the date of promulgation of this Act must be disposed of by the Board prior to the appointment of the new Board contemplated in subsection ( 2 ) . ( 5 ) An application for a permit in respect of section 26(b) of the principal Act, submitted prior to the amendment of that section by this Act, shall be dealt with and finalised in to its amendment by this Act. terms of that section prior 20 Short title and commencement

50. This Act is called the Immigration Amendment Act, 2004, and comes into operation on a date determined by the President by proclamation in the Gazette.