Immigration Act 13 of 2002

Overview

The Immigration Act 13 of 2002 is the primary legislation governing immigration in South Africa. It provides for the regulation of admission of persons to, their residence in, and their departure from the Republic. It repealed the Aliens Control Act 96 of 1991 and the Aliens Control Amendment Act 76 of 1995.

Full text sources:

• Official: https://www.gov.za/sites/default/files/gcis_document/201409/a13-020.pdf
• SAFLII (consolidated with amendments): https://www.saflii.org/za/legis/consol_act/ia2002138/
• DHA (updated to 2014): https://www.dha.gov.za/IMMIGRATION_ACT_2002_MAY2014.pdf

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Structure of the Act

Chapter 1: Definitions, Objects, and Administration (Sections 1-8)

Section 1 - Definitions Key definitions include:

• "foreigner" - an individual who is not a citizen or a permanent resident
• "illegal foreigner" - a foreigner who is in the Republic in contravention of the Act
• "permanent residence permit" - a permit issued under Section 25
• "port of entry" - any place designated by the Minister for entry/departure
• "temporary residence visa" - authorization for temporary stay
• "transit visa" - visa allowing passage through the Republic

Section 2 - Objects of the Act

• The Department shall pursue a "human rights and civil rights" based culture in immigration control
• Immigration control shall be performed with due regard to the Bill of Rights in the Constitution
• Promote a human rights-based approach to protecting South African borders

Section 3 - Administration

• The Director-General of Home Affairs is responsible for administering the Act
• May delegate powers to officials

Section 4 - Immigration Advisory Board

• Establishes the Immigration Advisory Board
• Advises the Minister on immigration policy
• Members appointed by the Minister
• Board must include representatives from government departments, organized labour, organized business, and civil society

Section 5 - Regulations

• The Minister may make regulations to give effect to the Act
• Regulations published in the Government Gazette

Section 6 - Fees

• The Minister may prescribe fees for services under the Act
• Fees prescribed in the Immigration Regulations

Section 7 - Powers of the Minister

• Broad powers to make regulations
• Can declare countries as visa-exempt
• Can designate ports of entry
• Can publish the Critical Skills List by gazette notice
• Can grant exemptions in special circumstances

Section 8 - Powers of the Director-General

• Issuing and revoking visas and permits
• Granting waivers of requirements
• Approving or refusing applications
• Enforcing compliance

Chapter 2: Admission and Departure (Sections 9-12)

Section 9 - Admission

• No person shall enter or depart from the Republic except at a designated port of entry
• Must be in possession of a valid passport or travel document
• Must have appropriate visa/permit if required

Section 10 - Prohibited Persons

• Certain persons may not be admitted to South Africa:
  • Anyone infected with or carrying a prescribed disease
  • Anyone convicted of a crime with imprisonment without the option of a fine
  • Anyone previously deported from South Africa
  • Anyone who is a member of or adherent to an association or organization that advocates terrorism
  • Anyone deemed an undesirable person by the Director-General

Section 11 - Transit

• Provisions for transit through South Africa
• Transit visa requirements

Chapter 3: Temporary Residence (Sections 12-22)

This chapter establishes all temporary residence visa categories:

Section	Visa Category
Section 11(1)	Visitor's Visa (no work rights)
Section 13	Study Visa
Section 14	Treaty Visa
Section 15	Business Visa
Section 16	Crew Visa
Section 17	Medical Treatment Visa
Section 18	Relative's Visa
Section 19(1)	General provisions for work visas
Section 19(2)	General Work Visa
Section 19(3)	Intra-Company Transfer Work Visa
Section 19(4)	Critical Skills Work Visa
Section 20	Retired Person's Visa
Section 21	Corporate Visa
Section 22	Exchange Visa

Section 23 - Asylum Transit Visa

• Allows asylum seekers to travel to a Refugee Reception Office

Chapter 4: Permanent Residence (Sections 25-27)

Section 25 - Permanent Residence Permits

• Framework for issuing permanent residence permits
• Subject to prescribed requirements
• Director-General's discretion

Section 26 - Direct Residency

• 26(a): After 5 years on work visa with permanent employment
• 26(b): Spouse of SA citizen/PR for 5+ years
• 26(c): Child under 21 of citizen/PR
• 26(d): Child over 21 of citizen/PR

Section 27 - Residency on Other Grounds

• 27(a): Permanent employment offer (with labour market test)
• 27(b): Extraordinary skills/qualifications
• 27(c): Business investment (R5 million, may be waived)
• 27(d): Refugee with 10+ years continuous residence
• 27(e): Retired persons (R37,000/month income)
• 27(f): Financially independent (R12 million net worth)
• 27(g): Relative of citizen/PR

Chapter 5: Enforcement (Sections 29-37)

Section 29 - Compliance Monitoring

• Immigration officers may require identification
• May enter premises for inspection

Section 30 - Deportation

• Illegal foreigners must be deported
• Director-General may issue deportation orders

Section 32 - Detention of Illegal Foreigners

• Illegal foreigners may be detained pending deportation
• Must be held in designated facilities

Section 34 - Arrest and Detention (KEY - subject to Amendment Bill)

• Provides for arrest and detention of illegal foreigners
• Sections 34(1)(b) and (d) declared constitutionally invalid by the Constitutional Court
• The Immigration Amendment Bill 2024 addresses these constitutional deficiencies
• New requirement: detained person must appear before court within 48 hours

Section 35 - Penalties

• Penalties for various offenses under the Act
• Includes fines and imprisonment

Section 38 - Employer Obligations

• Employers must not employ illegal foreigners
• Must verify immigration status of employees
• Must keep records
• Penalties for non-compliance

Chapter 6: General Provisions (Sections 39-52)

• Appeals processes
• Judicial review
• Transitional provisions

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Key Amendments

Immigration Amendment Act 19 of 2004

• First major amendments to the Act
• Refined visa categories
• Strengthened enforcement provisions

Immigration Amendment Act 3 of 2007

• Further refinements to visa categories
• Changes to enforcement mechanisms

Immigration Amendment Act 13 of 2011

• Significant overhaul of visa categories
• Introduced the current framework of temporary residence visas
• Changed terminology from "permits" to "visas"
• Introduced Corporate Visa concept
• Reformed work visa categories

Immigration Regulations 2014

• Detailed implementation rules for the Act
• Prescribed requirements for each visa category
• Fee schedules
• Forms and documentation requirements
• Updated multiple times, most recently in May 2024

Immigration Regulation Amendments - May 2024

Key changes:

• Points-based system introduced for General Work and Critical Skills visas
• Remote Worker Visa introduced as new sub-category of Visitor's Visa
• Police clearance redefined - only required from countries where applicant lived 12+ months after age 18 in preceding 5 years
• Radiological report requirement removed
• Trusted Employer concept introduced for points system
• Effective date: 9 October 2024

Immigration Amendment Bill (B8-2024)

• Addresses Constitutional Court findings on Section 34(1)(b) and (d)
• Requires detained illegal foreigners to appear before court within 48 hours
• Court must determine if further detention is in interests of justice
• Passed National Assembly (September 2025)
• Passed NCOP (December 2025)
• Awaiting Presidential assent as of February 2026

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Constitutional Court Judgments

Lawyers for Human Rights v Minister of Home Affairs

• Found sections 34(1)(b) and (d) constitutionally invalid
• These sections allowed detention of illegal foreigners without adequate judicial oversight
• Led to the Immigration Amendment Bill 2024

Other Key Judgments

• Courts have consistently upheld the rights of foreign nationals under the Bill of Rights
• Asylum seekers have constitutional rights (except those explicitly reserved for citizens)
• Deportation must follow due process
• Detention must be subject to judicial review

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Key Principles

1. Rights-based approach: Section 2 mandates a human rights culture in immigration control
2. Ministerial discretion: Broad powers given to the Minister to shape policy through regulations and gazette notices
3. Director-General's authority: Day-to-day administration and decision-making
4. Economic focus: Immigration policy designed to attract skills needed by the economy
5. Security balance: Balancing facilitation with border protection
6. Points-based merit: Since 2024, work visas assessed on objective points criteria