Question posted in the Immigration Law category relating to Western Cape
Question value: R 300.00
My husband is from Turkey and we have been married over 6 years now. He has been in SA since 2010. He has had x 2 Spousal visas. We applied for Permanet Residency in the mean time which is in process and had to renew his temporary spousal visa once again whilst waiting for the outcome.
We applied in February at VFS centre Cape Town more than 2 months before the expiry of his temporary visa. The outcome is still not ready and DHA can not give us any feedback as to when it will be ready. His visa expired on 3 May. On 14 May my husband had to leave for Ghana for a business meeting. Not realising that theVFS Receipt for his application is not going to guarantee him safe return. He received a letter at immigration that due to his 12 day overstay he is now banned from returning to SA for 12 months.
I see on DHA website that I can appeal this. He needs to return, he is my husband and I need him back. On what legal grounds can I appeal? I do not have the funds to afford legal represenation at this point but need to resolve ASAP so that he can come home.
We where ignorant and did not realise that he is not allowed to leave and that he should wait for the outcome. We where under the impression that the VFS receipt will allow him to return without a problem.
Answer to the Question
Hi there and thank you for your question,
Yes, you can appeal the decision, but you need to do this within 10 working days!!!
While your husband's personal circumstances do not play a factor in him being declared undesirable, they are, however, considered in the adjudication of an overstay appeal! You therefore need to set out all of the personal circumstances in your appeal.
Your appeal wouldn't really be on legal grounds, it would be on grounds that you were not aware that your husband was not allowed to leave the country while he was waiting for his renewal spousal visa to arrive.
It would be based on the fact that your husband is legally entitled to a spousal visa, because he is married to you, and that he is waiting on it to be issued.
It would also be based on the fact that he has already applied for permanent residency, and you are still waiting on that.
You could also throw in a ground of it infringing his constitutional rights in general.
You'd also need to go on the fact that he was ignorant in relation to the law... that he didn't know.
Have a look at this website (http://www.savisas.com/visa-overstay-appeal-south-africa/) which gives quite a lot of information about overstaying a visa.
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Information provided by client
Answer to the Question
Human Dignity - not being allowed to live with his family.
Freedom of movement and residence - similar