Answer to a question from a reader

What can my Egyptian boyfriend do to stay in SA now that his passport has expired?

The short answer

He needs to become "legalised." You would need legal help.

The whole question

Dear Athalie

I am a South African citizen with a valid ID and passport. My boyfriend is Egyptian. He does not have his ID with him but he has an expired passport and has been living in SA for more than 5 years. He tried getting a new passport from Egypt but failed because of the complicated laws. He went to the Egyptian embassy but they are unable to help him because of his age and expired passport. 

Since he has lived here for so long, can he get a South African ID and passport? If yes, what must he do? If not, what is the next step?

The reason he hasn't returned to Egypt is that his family lives in SA and he doesn't want to join the army. He now has a business and a home. He only needs his passport and ID.

The long answer

I’m afraid this is a difficult problem. As things stand, he is technically an “illegal foreigner” in terms of the Immigration Act because he does not have a valid visa or permit to be here; his passport is expired and the Egyptian Embassy says they cannot renew it. That means he could be arrested and deported. 

If he is deported, he is likely to be declared “an undesirable person” by the Director-General of Home Affairs. This means that he would be banned from re-entering South Africa for anything from a year up to five years. A ban might also affect his chances of applying successfully in the future.

To become “legalised” he would have to be able to persuade Home Affairs that he couldn’t apply for a visa before his passport expired for reasons beyond his control, like serious illness, or Home Affairs losing his application, and that he was now in a position to do so. He would need to submit a completed visa application with all the required documents. But it would be very hard to persuade them that he had reasons beyond his control for such a long time. He would have to write down all these reasons as part of an “authorisation application”, which Home Affairs calls “good cause applications”. 

In considering this application, Home Affairs would also take into consideration the question of whether he was married to a South African citizen or had South African children.

The Immigration Act does provide for a spousal visa, which is a temporary visa that allows a foreigner to join his South African partner for a period of two years. The spousal visa can then be renewed and after five years the couple can apply for life partnership / permanent residence.

You and your boyfriend would have to prove that you are emotionally and financially dependent on each other and you would be interviewed separately by Home Affairs. You would have to write a letter of support for the granting of the spousal visa, and it would obviously be easier if you were able to show a marriage certificate. He would have to submit a completed temporary residence application form.

A further problem right now is that Home Affairs has suspended the registration and performance of marriages due to the lockdown. They have also suspended applications for smart IDs.

Perhaps you could contact one of the following organisations for advice and help:

  • Lawyers for Human Rights

4th Floor Heerengracht Building, 87 De Korte Street corner Melle Street, Braamfontein, Johannesburg, 2001

Tel:  +27 11 339 1960

  • Legal Resources Centre – Johannesburg Office

Bram Fischer Towers, 15th floor, 20 Albert Street, Johannesburg, 2001

Tel: +27 11 836 9831

  • Legal Resources Centre – Cape Town

3rd Floor, Greenmarket Place, 54 Shortmarket Street, Cape Town, 8001

Tel: +27 21 481 3000

  • Scalabrini Centre of Cape Town

47 Commercial Street, Cape Town, 8001

Tel: +27 21 465 6433

Wishing you the best,

Answered on Feb. 9, 2021, 4 p.m.

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