Travellers at Cape Town International Airport. Picture: ESA ALEXANDER
Travellers at Cape Town International Airport. Picture: ESA ALEXANDER

There have been reports of foreign permanent residents who have been denied entry into SA due to being nationals from countries whose citizens are currently banned from entering. This has caused considerable consternation and uncertainty about the rights of foreign permanent residents and other visa holders’ rights to enter SA.

In terms of the Immigration Act, certain foreign nationals can be prevented from entering SA if they are “infected with or carrying infectious, communicable or other diseases or viruses as prescribed”. Covid-19 is such a coronavirus-based disease.

Permanent residents have “all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the constitution explicitly ascribes to citizenship”. 

As South Africans can enter SA, even if they come from one of the countries whose citizens cannot currently enter the country (subject to quarantine), it is conceivable that permanent residents should have the same right of unfettered entry into SA. Having a communicable disease (such as Covid-19) is not one of the reasons justifying revoking someone’s permanent residence.

However, according to section 21(3) of the constitution: “Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.” Thus, the right to enter, remain and reside in SA is a right only available to citizens, and so not available to permanent residents.

Therefore, while an SA citizen will have the right to enter the country even if they are coming from any country whose citizens are currently banned from entering SA, that right does not extend to permanent residents, regardless of whether they travelled to such a country or not. They may thus be legally barred from entering SA, although one hopes that sense prevails.

The same considerations apply to holders of temporary residence visas, such as work visas, student visas and spousal visas who may well find that they may not be able to return to SA should they return from any country on the banned list. 

It is therefore recommended that foreigners with permanent residence or temporary residence visas, who are already in SA, do not travel abroad at this time as they may not be able to re-enter on return.

An additional problem may arise for foreigners whose visas are due to expire and, due to flight cancellations, find that they cannot leave SA. Such foreigners face the daunting prospect of being declared undesirable persons, facing bans of up to five years during which they cannot return to SA (and, in a worst-case scenario, imprisonment). 

Although the Immigration Act says that people who overstay their welcome “may” be declared undesirable, in practice home affairs has declared every foreigner who overstays their welcome undesirable, even babies, regardless of how valid a reason a foreigner may have for not being able to leave SA.

It is hoped that home affairs recognises these anomalies and provides an exemption to foreigners who cannot leave the country due to the pandemic and not declare them undesirable persons.

• Myburgh is an attorney in Johannesburg.