South Africa: Right of return to South Africa and to remain there for a permanent resident who left South Africa in 1997; rights that permanent residents have in South Africa and more specifically whether they have the right to work, access to social services and the right to study (2005)
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board, Canada |
| Publication Date | 8 March 2005 |
| Citation / Document Symbol | ZAF43415.E |
| Reference | 1 |
| Cite as | Canada: Immigration and Refugee Board of Canada, South Africa: Right of return to South Africa and to remain there for a permanent resident who left South Africa in 1997; rights that permanent residents have in South Africa and more specifically whether they have the right to work, access to social services and the right to study (2005) , 8 March 2005, ZAF43415.E , available at: https://www.refworld.org/docid/42df61ca20.html [accessed 7 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Right of Return for a Permanent Resident
According to Article 28 (c) and (d) of the Immigration Act, 2002: No. 13 of 2002, permanent residence status may be withdrawn if the person
(c) has been absent from the Republic for more than three years, provided that-
(i) upon showing good cause and upon prior application the Department [of Home Affairs] may extend this period in specific cases;
(ii) the time when such holder-
(aa) was residing abroad while in the service of the State;
(bb) was residing abroad while a representative or employee of a person or association of persons resident or established in the Republic;
(cc) was residing abroad while in the service of an international organisation of which the State is a member;
(dd) in the case of the spouse or dependent child of a person referred to in subitem (aa), (bb) or (cc), such spouse or child was residing with such person; or
(ee) in the case of the spouse or dependent child of a person who is a South African citizen, such spouse or child was residing with such person, shall not be computed within such period;
(iii) the Minister, on recommendation of the Director-General, may grant an exemption from the requirement of residence in respect of certain residents or class of residents;
(iv) the period of absence may only be interrupted by an admission and sojourn in the Republic; and
(v) the requirement of residence in the Republic shall not affect any foreigner to whom exemption has been granted under section 31(2)(b) as a member of a category of persons, unless such foreigner previously entered the Republic or sojourned therein for the purpose of permanent residence under the authority of such exemption; or
(d) has not taken up residence in the Republic within one year of the issuance of such permit.
According to information received in 24 February 2005 correspondence from the Consul of the South African Consulate General in New York,
[t]he status of holders of permanent residence who left South Africa before the implementation of South African Immigration Act (Act no. 13 of 2002) will remain valid ONLY if they return to take up their residence in South Africa on or before April 06, 2006. It is noteworthy that if such a person will not be able to return to SA [South Africa] for permanent residence, he or she can file an application for an extension of the residence status accordingly. Such an application can be filed at the nearest mission of South Africa before the date cited above.
The information contained in the Immigration Act was corroborated in part by a South African lawyer who specializes in "permanent residence applications, work permits, study permits and all other ancillary matters related to immigration or temporary residence permits" (Attorneys.co.za n.d.), who stated that
[a] person who was a permanent resident in South Africa and who left the country in 1997 may return to South Africa but will not be entitled to retain the same residency status as before if they have not returned to South Africa within a period of 5 years from date of departure. The said period of 5 years can be broken or breached by a single return to South Africa with no time restriction on the said visit (1 Mar. 2005).
The South African lawyer also stated that the person can reapply for permanent resident status, and the fact that he or she has already been accepted as a permanent resident will be a favourable factor. In addition, the person can help his or her case in reinstating the status if he or she has
immediate family in South Africa, fixed property still in South Africa, investments in South Africa as well as various other categories in the event of such person's personal circumstances having change[d] and being permitted to apply in the 'retired category' and/or 'own business' category or even 'workers' category', if applicable (Lawyer 1 Mar. 2005).
Rights of a Permanent Resident
According to Article 25 (1) of the Immigration Act, no. 13, 2002, "[t]he holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship." Information found on the Ritztrade.com Website states that permanent residents "are bound by all the duties, and have the rights, of a South African citizen (excluding the right of election)" (n.d.).
According to information received in 24 February 2005 correspondence from the Consul of the South African Consulate General in New York, "[h]olders of permanent residence status in South Africa have a right to work, access to social services and also to study." However, according to information received in 1 March 2005 correspondence from a South African lawyer, some restrictions exist in terms of accessing social services as
[a] person with permanent residency in South Africa would have the right to work or study and to re[s]tricted social services, i.e. Government Hospitals, Unemployment Insurance Fund, but would not be entitled to receive an 'old age pension' unless they convert their status to that of a South African citizen by naturalization (such person would still be entitled to dual citizenship).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.
References
Attorneys.co.za. n.d. "Johannesburg Attorneys and Lawyers in Brakpan South Africa."
Consulate General of Republic of South Africa, New York. 24 February 2005. Correspondence from the Consul.
Lawyer. Gauteng, Johannesburg. 1 March 2005. Correspondence.
Republic of South Africa. 31 May 2002. "Immigration Act 2002 No. 13, 2002."
Ritztrade International Business Exchange. n.d. "Information About Entering- and Immigration Policies in South Africa."
Additional Source Consulted
Internet sites, including: Come2capetown.com.
