South Africa: Right of return to South Africa and residence rights of a permanent resident who left South Africa in 2004; 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 - August 2009)
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board of Canada, Ottawa |
| Publication Date | 29 September 2009 |
| Citation / Document Symbol | ZAF103203.E |
| Cite as | Canada: Immigration and Refugee Board of Canada, South Africa: Right of return to South Africa and residence rights of a permanent resident who left South Africa in 2004; 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 - August 2009), 29 September 2009, ZAF103203.E, available at: https://www.refworld.org/docid/4b20f03f2a.html [accessed 22 May 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. |
In 28 August 2009 correspondence, a representative of the Canadian High Commission in Pretoria, South Africa, stated that, based on section 28 of South Africa's No. 13 of 2002: Immigration Act, 2002, if a person retains permanent residency, he or she has the right to work, study and have access to social services. If a person does not fall under this Article of the law, that person must apply for a Temporary Residence Permit in order to work or study (Canada 28 Aug. 2009). The Representative also stated that people will lose their permanent residency if they have been outside the country for a period of time, "... unless they are abroad with RSA [Republic of South Africa] spouse, working at a RSA company or under extreme Humanitarian and Compassionate grounds" (Canada 21 Sept. 2009).
Subsection 25 (1) of South Africa's No. 13 of 2002: Immigration Act, 2002, states that "the 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" (South Africa 31 May 2002, Subsect. 25(1), emphasis in original).
Section 28 of the Immigration Act, also notes that
The Department may withdraw a permanent residence permit if its holder-
...
(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 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 refered to in subitem (aa), (bb) (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 (ibid., Sect. 28, emphasis in original).
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 sources consulted in researching this Information Request.
References
Canada. 21 September 2009. Canadian High Commission, Pretoria. Correspondence from the Migration Integrity Assistant.
_____. 28 August 2009. Canadian High Commission, Pretoria. Correspondence from the Migration Integrity Assistant.
South Africa. 31 May 2002. No. 13 of 2002: Immigration Act, 2002.
Additional Sources Consulted
Oral sources: Representatives of the South African Consulate General in Toronto and the South African Consulate General in New York were unable to provide information requested within the time constraints of this Response.
Internet sites, including: South African Department of Home Affairs.
