14 December 2011
Dear Clients and Partners,
sehr geehrte Mandanten und Partner,
(bitte lassen Sie Ihren Fachberater wissen, falls Ihnen der Inhalt des Schreibens auf Deutsch vermittelt werden soll)
The year is coming to a close and immigration matters could be described as “consistently challenging” which, ironically, is an improvement to this time last year. Reports on hundreds of Zimbabwean nationals deported during the past months have dominated the news, and in general Home Affairs is being perceived as taking a stronger stance on illegal immigrants.
Minister of Home Affairs Nkosazana Dlamini-Zuma received an improved C+ score in parliament’s opposition (Democratic Alliance) Cabinet Report Card. This is largely based on the Department having received an unqualified audit for the first time since democracy and freedom in 1994, as well as measures taken to root out corruption. Both of these successes are laudable, but should have been weighed against the chaos persisting in temporary and permanent residence, which continue to deter foreign investment and skills and hamper our economy.
Home Affairs Update
After having cleared some of its backlog around mid-year, the Department is now back to an average processing time of 4-6 months for temporary residence (with the exception of corporate worker permits, which are “expedited” and processed within 2-3 months), and about 12-18 months for permanent residence.
The occurrence of errors in permits that are being issued remains problematic. Errors range from incorrectly spelt names, wrong employer names being inserted, incorrect categories of permits being used, permit types being confused amongst family members (e.g. the father receives a study permit, whilst the 5-year-old daughter receives a permit to work as the CEO of company XYZ), permits being given incorrect validity periods, etc. The process to rectify these errors regularly takes significantly longer than the original applications (currently 9 months and more).
Earlier this month, the Department’s entire Head Office has (yet again) moved premises and returned to its location in the centre of Pretoria. The move is still on-going and has obviously brought many processes to a standstill and made officials even less accessible.
About one month ago, a policy change seems to have been implemented, in terms of which “section 11(2)” permits (short-term authorisations to work) were to be issued with greater caution and no longer available to certain industries (e.g. models and call centres). This has caused concern amongst some of our clients. Whether this policy change will be made into an official directive from Home Affairs’ Head Office is unclear at this stage. Excluding certain industries altogether from this permit category appears highly questionable from a legal perspective and is likely to be challenged. However, increased problems should be expected over the coming months and professional advice should be sought before applying.
Immigration Amendment Act 2010
The Immigration Amendment Bill has been accepted by parliament and thus become the Immigration Amendment Act of 2010, but to date there is no word of the Immigration Regulations, which need to be drawn up, commented on by the Immigration Advisory Board, finalised and published before the new law can be implemented and enforced. These intricate Regulations will prescribe the detail of the law and provide insight into how the new rules are to be interpreted. It is not expected that any wider consultation with the public will take place.
At this stage, we do not expect major changes in terms of the services we provide to our clients, with exception of the requirement to appear in person before Home Affairs when making a submission. Here, we will be accompanying our clients to the submission much in the same way that we already do in the context of permanent residence applications.
Fica and the Freezing of Bank Accounts
On the positive side, we have received fewer reports by clients whose accounts were frozen due to their temporary residence permits having expired whilst they were awaiting extensions from Home Affairs. Generally, our clients were able to avoid the freezing of their accounts by presenting documentary proof of their pending application to the bank. Please contact our team for details.
Court Action against Home Affairs
An indirect success for our industry and clients has been a Cape High Court judgment of late November, in which the judge accused the Department of “administrative bungling” and has given it 30 working days to finalise about 100 applications submitted to it as far back as February 2010. In the proceedings Home Affairs brought a host of tactics to its defence: it claimed that the applications had actually already been processed, kept submitting incorrect and incomplete lists, added that internal investigations had delayed the processing, and so on. The explanations were rejected by the judge who said the constitution placed an obligation on public administration to adhere to a high standard of professional ethics.
“Despite the (department’s) protestations to the contrary, the inescapable inference is that, irrespective of whether they have the best will in the world, they have dealt with the applications of the applicants’ various clients in a manner which can only be described as ‘administrative bungling’.”
One can only hope that Home Affairs will take this judgment as a warning and put additional focus on its performance regarding the processing of temporary residence applications.
IMCOSA Internal News
Our IMCOSA Gauteng team with Astrid Popken at the helm has settled well into the new premises and into its new constellation and is showing tremendous commitment and motivation. Each one of these women playing with real life lions at our year-end function illustrates their ability to tackle challenging situations with courage and determination.
The Cape Town team is moving from strength to strength and is an absolute pleasure to work and be with. We are pleased to announce that Nicola Raubenheimer has taken over the additional role of Operations Manager of our Cape Town Head Office. Nicola has become an integral part of the management and a wonderful and inspiring leader to the team.
I want to thank the entire team for its hard work, dedication and wonderful spirit during 2011. I look forward to what lies ahead.
My final and passionate thanks goes to our clients, partners and friends for your on-going trust and support, your understanding and patience at times, but also your occasional constructive and rigorous feedback during the year. We look forward to serving you with excellence in 2012 and to continue making your immigration processes as smooth and predictable as possible.
We wish you a festive season full of love, peace, rest and quality time with your families.
Julia Willand and the IMCOSA Team
IMCOSA - Immigration Consultants South Africa - Visa Services, Immigration Agents