Can Home Affairs Deport You While Your Appeal Is Pending?

Deportation is one of the most frightening prospects facing a foreign national in South Africa. What makes it even more alarming for many people is the uncertainty about what happens during the appeal process. Can the Department of Home Affairs remove you from the country while you are still contesting a decision? This article explains your rights and the legal safeguards available to you.

The Right to Appeal

The Immigration Act 13 of 2002 and the Immigration Regulations provide for an internal appeals mechanism. Where a visa application or renewal has been refused, or where a visa has been cancelled, the affected person has the right to appeal to the Minister of Home Affairs. Critically, the Act provides that a person who has lodged an appeal within the prescribed timeframe is deemed to be in South Africa lawfully pending the outcome of that appeal.

The Legal Protection During Appeal

Section 8(5) of the Immigration Act states that a person who is the subject of a deportation order and who has applied for a review or appeal is entitled to remain in South Africa pending the final determination of that appeal or review, provided the appeal is lodged within the prescribed time. This is a crucial protection — it means that if you act swiftly and correctly, deportation should be suspended while your matter is pending.

The Risk of Unlawful Deportation

Despite this legal protection, there have been instances where the Department of Home Affairs has attempted to deport individuals even while legitimate appeals were pending. This constitutes an unlawful act and can be challenged urgently in the High Court. An urgent interdict — an emergency court order — can be obtained to stop a deportation in its tracks, sometimes within hours.

What You Must Do Immediately

If you have received a notice of deportation, time is your most critical resource. You should immediately:

•  Contact an immigration lawyer as a matter of urgency.

•  Ensure that your appeal is lodged within the prescribed timeframe (usually 10 business days from the date of the decision).

•  Gather all relevant documentation relating to your immigration history and the decision you are appealing.

•  If deportation is imminent and unlawful, instruct your lawyer to approach the High Court for an urgent interdict.

Court Intervention: A Powerful Remedy

South African courts have consistently upheld the rule of law in deportation matters. The Constitutional Court and the High Courts have intervened to prevent unlawful deportations, uphold the right to a fair hearing, and protect the dignity of foreign nationals. The courts take a dim view of Home Affairs acting in breach of its own statutory obligations.

Ndou Attorneys Inc. has experience in urgent immigration litigation and can assist you in protecting your rights at every stage of the process.