EINWANDERUNG SÜDAFRIKA - NEWSLETTER MÄRZ 2011
Viel Neues, Vielversprechendes, aber auch an manchen Stellen weiter Frustrierendes - wir sind weiter in Ihrem Interesse an dem Department of Home Affairs dran!
Dear valued Clients and Partners,
sehr geehrte Mandanten und Partner,
The new year is well under way and as anticipated, 2011 has started on a more positive note than 2010 ended. This certainly in respect of temporary residence processes, which are still far from acceptable, but at least showing a positive trend. The biggest headache for the immigration industry is now the Immigration Amendment Bill that is before parliament, and you will find more details on this further down.
Home Affairs Update
The Department of Home Affairs’ statements relating to the number of temporary residence applications in the backlog change on a weekly basis. The latest, dated 21 February, speaks of a former backlog of 48 000 files, which is now said to be down to 24 323. Astonishingly the statement spins it as if the centralization of the adjudication process, initiated by the Minister last year, was implemented as a result of an existing backlog and as if it presented the solution to such backlog, whereas in reality it was the cause of it (due to the centralization, the average processing time for temporary residence applications shot up from 4-6 weeks to 6 months and longer)! Note also that in about November 2010, the figure was said to be 17 000, and in December only 5 000. This suggests that things are getting worse, but may also mean that the figures are getting more accurate. Be that as it may, whilst IMCOSA still awaits some results from July of 2010, we have been receiving results on a few more recent applications in as little as two months, which is encouraging and shows that our work is on the right track. Also, the ratio of errors in the permits that are issued has improved slightly. In one court matter the Department has admitted to having lost or misplaced hundreds of applicants' files. The same has happened with some of IMCOSA’s files, but we have fortunately been able to resolve the relevant problems successfully.
In the meantime, Home Affairs’ public relations machine is working hard and newspaper articles quote the Minister as reporting on wonderful changes and improvements to the “old” processes, and on making things easier for skilled immigrants and investors. Nothing could be more removed from reality. I am happy to concede that there have been improvements in the processes since the middle of last year. However, looking at the depth of the crisis that existed then, the current situation is still considerably worse than prior to the centralization. Neither the new processes nor anything contained in the proposed changes to the laws is designed to make things easier for applicants. It was with some outrage that I read the Department’s statement of 21 February, in which the things that had been “improved” are listed. The list includes the 48-hour processing time for extensions of temporary residence permits as something that exists and functions. A survey of more than a hundred Immigration Practitioners registered with FIPSA (Forum of Immigration Practitioners) nationwide showed that not a single one had received an outcome for an extension within 48 hours or heard of anyone having received one.
Our battles on behalf of our clients continue here.
Court Action Against Home Affairs
The court application against Home Affairs by a group of immigration companies on behalf of about 600 of their clients in a bid to press the Minister and Department to finalize long overdue applications, is ongoing and the matter is expected to be heard in court within this month. We would like to reaffirm that IMCOSA is taking part in the legal proceedings in the best interests of our clients.
Immigration Amendment Bill 2010
Since November of last year, we have been closely following and involved in the parliamentary process around the Immigration Amendment Bill of 2010. The Forum of Immigration Practitioners of South Africa (FIPSA), as well as the Law Society of South Africa, the Legal Resources Centre, several law firms, the Centre for Development Enterprise (CDE) and many others, presented their comments on the Bill to the parliamentary portfolio committee on Home Affairs during the public consultation process. The criticism in relation to the most important issues was almost unanimous. In response to the public comments, the committee has asked Home Affairs to review certain aspects of the Bill. During the three committee meetings since the public consultation, there was much heated debate between ANC and DA members, as well as the Home Affairs team present. Every meeting was presented with further amendments, some of which have brought significant and critical relief from the original Bill’s proposals. On 8 March, the committee voted on the Bill and adopted it in its latest amended form.
What You May Have Heard About, But Has Subsequently Been Withdrawn from the Bill or Amended
- Removal of waiver option for Business Permits: The original Bill proposed the removal of the option to reduce or waive the minimum investment of R 2,5 million, which would have meant that every applicant for a business permit had to invest at least R 2,5 million and that no exceptions to this rule would have been possible. This proposal has in the meantime been withdrawn and the waiver option will therefore stay.
- The restriction of Business Permits to certain industries, to be prescribed by the Minister from time to time: The restriction has been removed and instead an exclusion clause has been inserted, in terms of which businesses in certain industries will be excluded, which industries will be prescribed.
- The restriction of Corporate Permits to certain industries, to be prescribed by the Minister from time to time: The restriction has been removed and instead an exclusion clause has been inserted, in terms of which corporates in certain industries will be excluded, which industries will be prescribed.
- Removal of work option for under 25-year-olds under Exchange Permit: The provision has been re-inserted and instead an exclusion clause has been inserted, in terms of which work in certain industries will be excluded, which industries will be prescribed. It is quite apparent that the above changes are really targeting strip clubs employing foreign “exotic dancers”, which have caused Home Affairs much embarrassment and negative publicity.
- The prohibition of changing temporary residence status or conditions of permit or even extending a permit from within the country (or rather, allowing it only in “exceptional circumstances” and after approval from the Minister, which is practically equivalent to a prohibition): This restriction has been changed to only apply to holders of visitor’s and medical treatment permits, which is a relief, but in its current form will still affect working spouses of South Africans, children and spouses accompanying a permit holder, as well as holders of short-term authorizations to work wishing to change to longer-term permits. These persons will have to interrupt their stay, leave the country and apply from their home country. They will have to await the outcome of such application (with processing times of up to 3 months) until being allowed to return to their homes in South Africa. Exceptions will be made in “exceptional circumstances”, which are to be prescribed in the Regulations. After much heated debate on my side with the official responsible for the drafting of the Bill, at least the requirement for an exception to be granted by “the Minister” has been removed, which should make it more accessible.
Problematic issues that the current proposal includes
- Removal of section 46, which provides that advocates, attorneys and registered Immigration Practitioners may represent applicants before the Department of Home Affairs. The concern is that the removal of section 46 will lead to the legitimization of corrupt and unethical “consultants”, taking away from foreigners the tool to differentiate bone fide practitioners from illegitimate ones, putting them at risk of being exploited and defrauded. Further, Home Affairs will have to communicate with and respond to thousands of individual applicants and companies instead of a controllable, reachable group of professionals who have expert knowledge of the immigration field and are able to disseminate information to their networks of clients, thereby ensuring that procedural and policy changes are complied with and that the system runs smoothly. Immigration is too complex a field for a call centre to be able to manage all enquiries with any level of significance or required expertise. This is expected to lead to inappropriate applications, negative decisions and a flood of appeals and/or court cases, making the process even slower and more unpredictable. In my capacity as Vice Chairperson of FIPSA, I formulated a letter that was sent out to large and influential clients of Immigration Practitioners country-wide, in a bid for support against the planned removal of section 46. About 40 signed letters by leading businesses, chambers of commerce, research bodies and major non-governmental organisations were presented to the committee’s chairperson and were discussed at the last committee meeting, but the ANC-dominated committee could not be swayed and insisted that the time for public input had passed. They will, however, be used once more in the next phase of the Bill, involving the National Council of Provinces and parliament’s National Assembly, and we again thank all those who have contributed to this action.
- Application in person: The proposed section will require all applications to be submitted in person, where applications can currently be lodged by courier or through attorneys, advocates and immigration practitioners or their staff. As most readers will know, it is a common occurrence for counter staff at offices of Home Affairs and at foreign missions to give poor or incomplete advice. Furthermore, there are language and cultural hurdles to be overcome. Many clients have reported to us their frustrations with Home Affairs and come to us for assistance due to their negative experiences there (e.g. repeatedly standing in lines for many hours only to be turned away yet again). Poor advice over the counter leads to inappropriate and incomplete applications, rejections, appeals, a clogging up of the process, a waste of government resources and a deterrent of foreign skills, investment and other much-needed benefits to South Africa. Immigration Practitioners have been shouldering the negative and tedious parts of the immigration process for their clients in order to ensure that the latter’s experience of coming to South Africa is a positive one, but will now be prevented from doing that.
- Job creation by Business Permit holders: The Bill proposes that Business Permit holders, instead of having to employ at least 5 South African citizens or permanent residents within 2 years from receiving the permit, will in future have to create a certain (to be prescribed in the Regulations) number and percentage of jobs for South Africans and permanent residents within 12 months. There exists great uncertainty around what this number and percentage will be.
- Effective abolishment of exceptional skills permit (replaced by the critical skills permit, whereby the quota work permit was abolished): Persons currently qualifying for this permit include successful sportspeople, artists, musicians, scientists, academics and other persons who have had an extraordinary impact in their fields. Very often other types of work permits do not apply to these sought-after individuals, or are extremely onerous in their requirements. Also, it is probably impossible to anticipate or predict all the different industries and fields in which exceptional skills may be needed in South Africa. Hence, no list will be able to capture all of the country’s needs, which are also ever-changing. South Africa will be losing an important tool to attract highly valuable individuals.
- Reduction of parliament’s control in respect of immigration policy: A number of changes proposed in the Bill will have the effect of parliament not being involved in critical questions of immigration policy. This includes all criteria attached to work permits, including intra-company transfer, critical skills and general work permits. These are all to be prescribed by Regulation. Since the amendments to the Immigration Act of 2005, Regulations do not need to be presented to parliament for comment anymore. The result will be a much-reduced oversight role of parliament.
- Overstaying: In future, any person who has overstayed the validity of his or her permit for a certain (to be prescribed in the Regulations) number of times, may be declared “undesirable”, which means that they do not qualify for any future visas or permits. No differentiation is made in the Bill between voluntary and involuntary (e.g. as a result of incapacity due to illness) overstaying, and no exemption is provided for persons who overstay as a result of delays on the side of Home Affairs. This creates major uncertainty and again a dependency on the Regulations, over which parliament has no control.
Changes to Labour Laws
In the very different, but related field of labour law, there are similar battles being fought, as no less than four pieces of labour legislation are proposed to be amended and going through the parliamentary process at the moment. It has been widely reported that one of the drafts is likely to lead to certain racial groups being seriously prejudiced and, for instance, that coloured workers in the Western Cape are threatened with losing their jobs by the thousands.
Other critical issues raised by industry stakeholders (Source: APSO) are:
- All fixed-term employees will be considered permanent unless the employer can prove otherwise
- Temporary employment will effectively cease to exist; the only options being permanent or justified fixed-term contract
- The triangular employment relationship is repealed, effectively prohibiting the use of Temporary Employment Services as an intermediary
- Requirement to pay fixed-term employees the same wages & benefits as permanent staff
- Joint and several liability for sub-contractor (employer) and client company in respect to any unfair labour practice within an outsourced or subcontracted environment
- All vacancies and placements will have to be reported, as well as reasons why referred candidates (from Public Employment Services) were not successful, to be given to the Department of Labour within 14 days
- Fines ranging from 2% – 10% of turnover for non-compliance with the Employment Equity legislation
If the above information affects you or your organisation and you want to do something about it, there are many ways of doing so. There is a strong need for business and civil society to become a lot more vocal in reaction to arbitrary or unfair political decisions and government action. Current developments in North Africa are proof of how powerful such civil action can be. A brand new initiative in this direction can be found on http://homeaffairsinvestigation.blogspot.com/2011/03/support-investigation-by-public.html. The media are generally a strong tool to get government attention, and what journalists generally look for are individual case studies.
And there is another, much less confrontational way to become active, which will be very effective in the long term and has the added advantage of being inspiring and of creating hope. In the spirit of President Zuma’s State of the Nation Speech, in which he emphasized the need for job creation and better education for all, and instead of allowing negative emotions about certain developments in the country to take over our thinking and actions, we can choose to contribute to improving things and to invest into South Africa’s youth. What is needed in South Africa is strong citizenship, and by building this amongst our youth we invest in the next generation of leaders and voters. EDUCO Africa is a registered non-profit organisation that IMCOSA has been actively supporting for the past two years, whose core focus is to build South African citizenship amongst youth predominantly from the disadvantaged communities. Its core methodology is wilderness-based experiential learning and its core outcomes address personal development, including self-esteem, problem-solving, building resilience, conflict resolution, communication and personal visioning. EDUCO Africa works with community-based partners to ensure maximum impact and sustainability of learnings. Please contact me if you want to find out more about the organisation and on how to contribute to and become part of its work.
In ending this very long newsletter, I wish to thank all our long-standing and new clients and partners for their support and resilience and for your continued trust. Our team has started the year with fresh energy and has focused on building relationships with relevant partners in order to achieve only the very best possible results for our clients. We are also developing strategies to accommodate and use the expected legislative changes for the benefit of our clients. We look forward to an exciting, eventful and positive 2011!
Julia Willand and your IMCOSA team
Cape Town (021) 462 3184 - Johannesburg (011) 326 5131 - www.imcosa.co.za