Today’s immigration landscape is shaped by heightened security sensitivities, resulting in stricter procedures and expanded oversight. Against this backdrop, the question of how “good character” and criminal records affect visa eligibility has become a recurring theme which is often misunderstood, not just in public discourse, but more importantly in administrative decision-making.
Questions surrounding criminal records and travel restrictions are becoming more common and more complex. In South Africa, individuals are often faced with conflicting advice, poorly understood rules and arbitrary or incorrect administrative decisions by the Department of Home Affairs (DHA), which reflect a lack of understanding of the legislative provisions of South Africa’s Immigration Act.
No universal bar
Most countries assess visa eligibility using a discretionary framework. A criminal record may warrant a closer look, but does not necessarily or uniformly exclude someone from applying or succeeding. Authorities generally take into account the nature of the offence, how long ago it occurred, whether it was a repeat or first offence, and whether it involved a custodial sentence. Different jurisdictions weigh these factors differently.
Canada, for instance, maintains relatively strict inadmissibility provisions. Even minor convictions, such as a DUI, may result in a refused admission. Australia applies a similar approach under its “character test” – travellers who receive prison sentences totalling more than 12 months can fail entry requirements even without a formal conviction.
These examples illustrate how discretion can become rigidity in practice, and how outcomes vary widely depending on how each jurisdiction interprets “character”.
For visa and permit applications, as of 2023, South Africa requires police clearance certificates only from countries where the applicant has resided for 12 months or more during the five years preceding the application. This marked a welcome shift from the earlier, more burdensome requirement to obtain clearance from every country of residence dating back to the applicant’s 18th birthday.
The Immigration Act distinguishes the consequences of different criminal records in terms of admission, visa and permit applications, and even as a ground for withdrawal of permanent residence. However, its implementation is plagued by errors, inconsistent standards and frequent arbitrary decisions.
Serious offences and risky affiliations
Section 29 of the Immigration Act lists “prohibited persons” who are automatically barred from entry into South Africa. Significantly, Section 29(b) applies only to individuals convicted of specific serious offences, including genocide, terrorism, human smuggling, trafficking in persons, murder, torture, drug-related charges, money laundering or kidnapping.
Other criminal convictions do not automatically render someone inadmissible under this section.
Section 29(d) further bars individuals who are members or supporters of organisations that advocate racial hatred or engage in social violence. This inclusion reflects a broader concern with ideological extremism and social threat, even in the absence of a direct criminal conviction.
The expulsion in March 2025 as “persona non grata” of South African Ambassador Ebrahim Rasool from the United States, while exceptional, underscores how immigration and diplomatic discretion can extend to symbolic acts of censure, reflecting how prohibitions can discretionally affect individuals deemed socially or ideologically threatening.
A further comparative example can be found again in the US where, in March 2025, the Trump administration used executive authority to deport more than 200 Venezuelans based on allegations of gang or terrorist affiliations, even in the absence of convictions and illustrating how “prohibited person” frameworks, including those focused on perceived threat or ideological association, can be applied expansively in politically charged contexts.
Discretion, error and overreach
Broader discretionary power in South Africa lies under Section 30 of the Immigration Act, which allows the DHA to declare someone “undesirable”. Within this context from a procedural standpoint – often misconstrued by adjudicators – it is important to note that a finding of undesirability is not automatic. An individual must be formally declared an undesirable person, in the correct form and by the appropriate authority, thereby enabling recourse outside the confines of a visa application process.
Police clearance certificates are meant to enable determinations under Sections 29 and 30 of the Act, yet the decision-making process remains largely flawed. As a consequence, substantively and procedurally unlawful and arbitrary rejections follow.
A case in point: one of our clients was forced to seek judicial relief through the high court after a four-year-long journey marked by repeated delays and litigation, during which the Department of Home Affairs issued not one but three unlawful rejections that fell outside the bounds of the Immigration Act’s empowering provisions.
This is merely one case of extraordinary perseverance – many visa applicants lack the resources or endurance to enforce their rights through litigation, even when the law clearly warrants it.
Visa-free admissions – a curious blind spot
Paradoxically, visa-free regimes often override careful eligibility assessments altogether. Visa waiver and exemption agreements allow travellers short stays without formal visa processing. Yet, this convenience trades off against scrutiny. Criminal records are rarely checked at ports of entry unless flagged via intelligence networks or biometric databases.
This dynamic is closely aligned to an often overlooked aspect of what high passport rankings, such as those reflected in the Henley Passport Index, actually signify: not merely freedom of movement, but access without accountability. Individuals from high-ranking countries can cross borders with minimal inspection, while others are subjected to heightened scrutiny even when disclosing minor infractions.
In this context, US citizens with records that would ordinarily warrant a finding and declaration of undesirability may still enter South Africa visa-free as tourists. A notable example is the admission of singer Chris Brown in October 2024, despite his widely reported criminal history, a decision that sparked calls for him to be declared an undesirable person under Section 30 of the Immigration Act.
Likewise, European nationals who would not qualify for South African residence on statutory grounds may enter without scrutiny, while others disclosing minor infractions are denied long-term status. The result is a fragmented system that penalises full disclosure and rewards quiet entry, producing legal and ethical inconsistency.
The ‘good and sound character’ test
Many immigration decisions hinge on a deceptively vague standard: that a person be of “good character”, “sound character”, or “fit and proper standing”. This remains one of the most discretionary and misunderstood tools in immigration law.
Most authorities assess a range of factors, including the nature and frequency of offences, conduct outside the criminal justice system (such as tax or immigration compliance), and any evidence of rehabilitation.
In South Africa, the “good and sound character” requirement is clearly limited to permanent residence applications under Section 27. It does not apply to Section 26 (based on direct residence) or to temporary visa applications. Nonetheless, it is routinely applied across the board.
In practice, the DHA frequently applies “character” assessments across all categories, including those where no such requirement exists, as a blanket ground for rejection. This represents a worrying extension of administrative discretion beyond the legislative framework, resulting in decisions that are procedurally and substantively unlawful.
Malema’s UK visa denial – a cautionary tale
The UK’s recent decision to deny a visa to Julius Malema on the grounds of “undesirability” stemming from his repeated public chanting of Dubul’ ibhunu (“Kill the Boer”), reveals how violence-inciting speech and affiliation are increasingly becoming a fulcrum for immigration decisions.
While Malema has not been convicted of any crime relating to incitement, his rhetoric has long courted controversy for stoking racial tension. The UK’s refusal echoes a global trend: States are asserting their right to exclude people on the basis of their own conception of social order, morality, or good standing, and not merely on their criminal convictions.
This trend is not unique to the UK. In the US, growing emphasis on digital surveillance has resulted in intensified scrutiny at borders, including the search of travellers’ personal devices and questioning based on online associations or social media content. Immigration enforcement is increasingly guided by digital profiles and perceived ideological affiliations rather than only on concrete legal transgressions.
A recent New York Times investigation revealed that student and tourist visas have been denied or revoked in the US based on applicants’ social media activity. The Malema case fits within this broader global trajectory: character-based exclusions are increasingly shaped less by criminal convictions than by digital footprints, reputational assessments and political sensitivities.
Gatekeepers should not be Sphinxes
Criminal records are not irrelevant. While the Immigration Act clearly outlines how inadmissibility should be assessed, its inconsistent application results in unjust outcomes. Discretion, combined with insufficient legal training, routinely results in the unfair penalisation of transparency, undermining the very legal safeguards the system is meant to uphold.
Immigration law is not merely a gatekeeping tool: it is a representation of society’s values and anxieties. The gatekeepers of our immigration system should not resemble the mythic Sphinx, offering riddles without answers and punishing those who fail to decode them.
If South Africa’s immigration regime is to uphold the constitutional values of dignity and fairness, it must embrace the principles of transformative justice, starting with the proper training of those responsible for the decision-making process. DM