How to apply for a waiver under section 31(2)(c)

Most of the frustration in South African immigration comes from a requirement that an applicant cannot meet for a reason that has nothing to do with their merits. The police clearance from a country that no longer issues them. The capital contribution that is R800 000 short. The document a foreign government will not produce.

There is a provision for exactly that, and a great many applicants have never heard of it.

What the provision says

Section 31(2)(c) of the Immigration Act 13 of 2002 provides that, upon application, the Minister may, under terms and conditions determined by him or her, for good cause, waive any prescribed requirement or form.

Three words in that sentence do the work.

Prescribed. It waives a requirement that is prescribed, meaning one that comes from the Immigration Regulations or the prescribed forms. It does not waive the Act. A requirement written into the statute itself is not waivable by this route, and applications that try to waive a statutory condition fail for that reason alone.

Good cause. There is no statutory definition. It is decided on the facts, which means the application is won or lost on the motivation and the supporting documents rather than on a formula.

May. It is a discretion. A strong application is not an entitlement.

What it is actually used for

In practice, waivers cluster around a handful of situations.

Financial thresholds. The best-known use is waiving the capital contribution for a business visa, where the investment is below the prescribed figure but the business is worth having. Our guide on applying for a business visa sets out how that sequence works, including the recommendation from the Department of Trade, Industry and Competition that in practice precedes it.

Documents that cannot be obtained. Police clearance certificates from countries in conflict, or whose systems do not produce them; birth or marriage certificates from jurisdictions that will not issue duplicates; documents lost in circumstances that can be evidenced.

Requirements about where an application is made. The Regulations restrict changing status or category from inside the country in defined circumstances, and a waiver is sometimes the route where leaving would cause serious harm. Our guide on changing your visa status from inside South Africa sets out the general rule that applies first.

Qualification and registration requirements that an applicant cannot satisfy in the prescribed form, for instance where a professional body's process does not fit the regulation's wording.

Relationship and duration requirements in the spousal and relative's categories, where the prescribed period or proof cannot be met in the form required.

What it is not for

Being clear about this saves a year.

It is not an appeal. If your application was refused on the merits, the route is an appeal, and our guide on appealing a visa rejection sets out the process and the deadlines, which are short and are enforced.

It is not the remedy for an undesirability declaration. That has its own routes: an appeal to the Director-General within 10 working days, and thereafter an application to the Minister to have the declaration withdrawn. Our guide on overstaying your visa sets both out.

It is not a way to shorten a queue. Where Home Affairs has simply not decided your application, the problem is delay rather than a requirement, and our guide on what to do if Home Affairs does not decide deals with that.

It is not for a requirement you can meet. This is the commonest waste. Applicants apply for waivers of requirements they could satisfy with two more documents, and spend eight months waiting for permission they did not need. Establish, precisely, which requirement you cannot meet and why, before assuming a waiver is the answer.

What good cause looks like

Since there is no definition, the question is what persuades. Applications that succeed tend to share the same features.

A specific requirement, identified by regulation. Not "I cannot meet the requirements". The regulation, the subregulation, and the exact words you are asking to be waived.

A reason that is not your own doing. A document a foreign state will not issue is good cause. Not having got round to obtaining one is not.

Evidence that you tried. Correspondence with the foreign authority, a letter from an embassy confirming the document is unobtainable, reference numbers and dates. This is the single most important element and the one most often missing.

An explanation of why the purpose of the requirement is still served. A regulation requiring a police clearance exists so that the Department can satisfy itself about your character. If you cannot produce one, what can you produce instead: clearances from other countries, an affidavit, references, a clean record here over years? An application that engages with the purpose of the rule is far stronger than one that simply asks to be excused from it.

Something in it for the country, where the category invites that. Employment created, skills transferred, investment brought in, a South African family kept together.

Consequences, stated concretely. What happens if it is refused: a business that closes, children removed from school, a family separated. Specific and evidenced, not rhetorical.

The process, and the timing

It is a separate application. You do not lodge a visa application and ask for a waiver inside it. The waiver is applied for and decided first, and the outcome is then submitted with the underlying application.

It goes to the Department, for the Minister's decision, and it is decided on the papers. There is no hearing.

It takes a long time. Many months is normal, and periods approaching a year are frequently reported. Treat that as a planning fact, not an injustice to be argued about.

Your status has to survive it. This is the point that undoes people. An applicant waiting nine months for a waiver, whose current visa expires in month four, and who stays anyway, will be declared undesirable on departure and the waiver becomes academic. Build the timeline around your existing status, and if the two cannot be reconciled, get advice on the options before your visa expires rather than afterwards.

If it is refused

A waiver refusal is the exercise of a discretion, so the challenge is not an appeal on the merits in the ordinary sense.

Ask for reasons. You are entitled to know why an administrative decision affecting you was taken.

Consider a fresh application where the refusal reveals a gap you can fill. A refusal because you produced no evidence of having tried to obtain a document is answered by obtaining that evidence.

Consider review. An administrative decision taken for the wrong reasons, without considering relevant material, or in a procedurally unfair way, is reviewable in the High Court. That is a real remedy and it is not a cheap one.

Consider whether the category was right. Sometimes a refused waiver is a signal that a different visa category fits better. Our guide on which visa you need to work here compares them, and the permanent residence and citizenship checker works through the routes.

Worked example

This example is illustrative. A man from a country in prolonged conflict has lived in South Africa for seven years on successive work visas and wants permanent residence. He can produce everything except a police clearance certificate from his country of origin, whose relevant authority has not functioned for years.

He cannot meet a prescribed requirement, for a reason entirely outside his control. This is what the subsection exists for.

The application identifies the regulation and the exact requirement. It attaches: three written requests to the relevant foreign authority over eleven months with no reply; a letter from that country's embassy in Pretoria confirming that certificates are not currently being issued; police clearance certificates from the two other countries he has lived in; a South African police clearance covering his seven years here; and an affidavit setting out his history.

It then deals with the purpose of the rule rather than asking to be excused from it. The Department needs to satisfy itself about his character. It has seven years of South African record, clearances from every other jurisdiction he has lived in, and continuous employment with one employer who has written a letter.

He lodges the waiver application while his current work visa still has fourteen months to run, and diarises a renewal of that visa independently of the waiver, so that a nine-month wait cannot put him out of status.

The version that fails looks similar but has no correspondence with the foreign authority, no embassy letter, and no substitute material. It asks to be excused from a requirement without showing either that the requirement is impossible or that its purpose can be met another way, and it is lodged by somebody whose visa expires in five months.