How can I stay in the country if my visa and passport have expired and my new passport has not arrived yet?

The long answer

As you must know, this is a very dangerous situation to be in, and you risk immediate deportation. If the spousal visa has expired for 30 days, you could be declared undesirable for 12 months. If it is over 30 days, you could be banned from South Africa for five years or more.  

That is why it is generally advised to apply for a new spousal visa about 90 days in advance of the present visa’s expiry. 

You should seek legal assistance from experienced immigration lawyers immediately to advise you on what your options might be, based on your specific circumstances.

For example, it may be possible to make a “legalisation application” to the Department of Home Affairs (DHA) to avoid being deported. The main purpose of “legalisation” is to give you a short period of grace for you to submit a new spousal visa application while still in South Africa. 

But to be eligible for legalisation means that 

1. you would need to demonstrate that you didn’t intend to overstay, but that it was caused by factors beyond your control

2. you would also need to show that you can submit the new spousal visa application as soon as you are granted legalisation. This means having these documents ready:

• Proof of relationship: Marriage certificate or proof of permanent partnership. 

• Proof of living together: Lease agreements, utility bills, or joint bank accounts. 

• Proof of financial support from your South African spouse: Bank statements or an affidavit confirming financial dependency. 

• Police Clearance Certificate: From South Africa and your home country.

• Medical reports: Updated medical and radiological (x-ray) reports

So, you would need to prepare a written document explaining the circumstances and why you believe that overstaying your spousal visa was unintentional, because of unforeseen factors. 

You would also need to gather all the documents to support your case, including proof of having applied for a new passport from your Embassy and any supporting documents to do with your marriage.

You could also approach the following organisations:

• Lawyers for Human Rights

Email: [email protected]

Tel: Musina 015 534 2203

Durban: 031 301 0531

Pretoria: 012 320 2943

Johannesburg: 011 339 1960

Cape Town: 021 424 8561

• Legal Resources Centre

Email:[email protected]

Johannesburg: 011 836 9831

Cape Town: 021 481 3000.

Durban: 031 301 7572

Don’t delay getting assistance! 

Wishing you the best,
Athalie