South Africa’s visa and permit scheme consists of two broad categories, those that allow for Temporary residence and another that allocates residence on Permanent basis. Whilst a permanent residence permit allows one to stay and undertake any activity in the republic as much as a citizen would, save for acquiring a passport and voting, the temporary visa category has various types that are issued to applicants to undertake a specific activity permitted under the conditions of such visa. These include Study, General Work, Relative’s, Business, Treaty, Medical, Spousal as well as Exchange Visas.
As can be deduced from their titles, only the activity for which that VISA is issued for is allowed and not complying with its conditions amounts to an offence. For example, a medical visa cannot be used for employment in as much as a study visa cannot be used to conduct formal business in the republic.
However, it often happens that the circumstances under which a particular visa was applied for and issued, may change. The holder of a visa in that situation may need to change the conditions permitted under that particular visa in order to cater for their changed circumstances.
Is that even possible?
Section 10 (5) of the Immigration Act 13 of 2002 (the Act) provides that the Department of Home Affairs (the department), for (and upon) good cause, may attach such reasonable terms and conditions to a temporary residence visa.
Whereas the expression ‘conditions’ is not specifically defined in the Act, it is accepted that these refer to the terms and permissions under which an applicant is bound upon the issuing of his/her visa. As alluded to above, a Study Visa allows an applicant to study in the republic, and not undertake any other activity unless specifically authorised by the change of such conditions or upon the issuing of another visa for a different purpose.
Section 10 (6) of the Act (as amended) provides in (a) that on good cause, a foreigner may apply for change of status or terms and conditions or both, attached to their temporary residence visa while in the republic except for holders of a medical or a visitor’s visa. Subsection (b) then makes provision for holders of medical or visitor’s Visas only changing their status or terms and conditions in exceptional circumstances.
The Act defines status as “the permanent or temporary residence issued to a person in terms of the Act and includes the rights and obligations flowing there from. Status in this context therefore refers to the legal standing of a foreign national, on temporary or permanent basis, in the republic. Such standing is coupled with a summation of conditions on a visa issued by the department.
From the wording in 10 (5) and 10 (6) it is evident that upon good cause, the status and such conditions attached to a visa can be changed depending on the circumstances. Effectively, this provides a way for a holder of a valid Study Visa who has been offered admission into further study, to apply to the department for change of conditions so that authorisation can be granted to undertake such further study. Similarly, towards the lapse of a Work Visa and upon the employer extending the period of employment, the holder of a Work Visa can apply to the department to request the extension of the period on such Work Visa. The holder of a Spousal Visa may apply, for an endorsement to be granted to authorise such holder to undertake employment.
An application for change of conditions needs to be done with the utmost prudence and diligence; it is advisable that applicants seek professional assistance. The department will only grant such change of status and conditions upon good cause and, what constitutes good cause depends on a case by case basis provided that a satisfactory degree of merit is achieved.
At Immigration Law Associates we stand ready to assist you in such applications and a wide array of other legal immigration matters so that you can explore and pursue your opportunities across borders legally. Our approach is professional, comprehensive and counters the hurdles in immigration. Contact us for an appointment and consultation.
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