Obwohl es noch einige Schwierigkeiten mit dem Department of Home Affairs auszustehen gibt, sehen wir auch ein paar erfreuliche Anzeichen, deren Entwicklung es abzuwarten gilt. Je nach Lage werden wir dann zusammen mit einigen Kollegen entweder ein gerichtliches Verfahren einleiten, oder zunächst die Fortschritte bei der Einwanderungsbehörde abwarten.

Newsletter vom 12. Oktober 2010:

Dear valued clients and partners, sehr geehrte Mandanten und Partner,

Much has happened since our last newsletter from early September. As much as we want to keep you informed of the developments regarding immigration to South Africa and the Department of Home Affairs, I will try to not overburden you and will keep this newsletter as short as possible.

In our last newsletter, we updated you on the centralization process and the negative impact this has had on processing times, on planned legal action against Home Affairs and on the upcoming legislative changes. Here is the latest:

Centralisation process and processing backlogs / Zentralisierungsprozess und Verzögerungen im Entscheidungsverfahren

You may have seen media reports and articles relating to the current crisis. Through our professional association FIPSA (Forum of Immigration Practitioners South Africa), we have put a lot of pressure on the Department to force it to address the existing problems and to allocate the required resources and funds for this. After months of continuous efforts during which the leadership in the Ministry and Department of Home Affairs seemed to remain oblivious regarding the extent of the crisis, we have more recently received reactions from both the Ministry and Director-General to the threat of court action by Immigration Practitioners. In response to the pressure through the media and other channels, the Director-General has contacted us almost on a daily basis since 26th September to update us on the Department's efforts to fight the processing backlog. Apparently, at least 20 new staff were appointed to the hub and several hundreds of applications are being adjudicates daily at this moment. According to the last update of 8th October, 650 applications were adjudicated on 7th October and almost 800 on 8th October. The current bottleneck seems to be in the placing of data on the electronic "track & trace" system, which is a requirement before sending the permit stickers out to the regions. The power failure suffered by the Pretoria Head Office during Tuesday and Wednesday of this week added to this delay. Apparently, 300 permits were sent to the regions on 7th October alone. Also, there is commitment to placing more staff on the "track & trace" process.

Whilst this all sounds promising, we are yet to see the effect of this seemingly extensive backlog project. Some permits that have been approved as much as two months ago have still not been received by the regional offices. The coming two weeks will be critical in determining whether the Department's efforts are sufficient and will lead to an alleviation of the crisis.

Lobbying and legal action / Lobbying und gerichtlicher Weg

During the past weeks we have been in discussions and meetings with attorneys and highly experienced advocates, and it has been confirmed that there is a good legal case to be made. The strategy has been defined and all is ready to go ahead. In light of the recent responsiveness and efforts made by Home Affairs, however, the group will give the authorities a small window period to prove that real progress is being made. Should this fail, the court action will go ahead.

Proposed legislative changes / Gesetzentwurf zur Änderung des Einwanderungsgesetzes

As anticipated and announced in our last newsletter, the Minister has tabled the draft Immigration Amendment Bill before parliament on Friday, 1 October. A number of sections of the Bill appear little thought-through and contain elements that are highly concerning and that, if implemented, will have a significant impact on foreigners living in or wishing to come to South Africa. Some key concerns:
Many aspects are not workable and Home Affairs is not equipped to manage envisaged processesThe cause of unnecessary costs for foreigners and their local employersUncertainty regarding application processes and requirements, deterring investment and skillsLikely violation of constitution and possible loss of thousands of jobs

One of the proposed changes entails applicants having to make applications in person instead of being able to send applications by mail, courier or through a representative. Also, changing the permit type or conditions of permit would be practically impossible and applicants would have to return to their countries of origin to apply for a new permit from there. For instance, a person holding a work permit in South Africa, who wishes to change employers or only to change position with the same employer, will have to leave the country (together with his/her entire family, if applicable) and apply from abroad, await the outcome of such application (with processing times of up to 3 months) before being allowed to return to his/her home in South Africa. The person's work and the children's schooling will be interrupted and there will be substantial costs for traveling and accommodation in the home county during this time. The same would apply to students changing university or to investors changing the nature of their business.

Further, for no apparent reason, business permits and corporate permits are to be restricted to certain industries (to be determined from time to time), the exceptional skills permit and the exchange work permit are to be abolished, and the requirements for general and intra-company transfer permits are not specified in the Act, but to be determined from time to time by the Minister, which leaves one worried at the additional power handed to the Minister in this context.

Apart from the potential effect on our clients, the Bill contains a change that may have an effect on the industry of Immigration Practitioners, attorneys and advocates. The section providing for these groups to be allowed to represent clients before Home Affairs is intended to be abolished. As previously indicated, some officials have explained that the intention is not to prevent Immigration Practitioners from practising in general or from representing their clients before Home Affairs, but rather to have them regulate themselves through an industry association or similar instead of being regulated by the Department of Home Affairs. The implications of such a change are being assessed at the moment and submissions to parliament and other relevant bodies are being prepared. Whether or not the Bill is implemented as it stands (and there is serious doubt that it will), there is no need for concern on the part of our clients and IMCOSA will continue delivering its services to you within the ambit of the law.

In the above context, some defamatory remarks about "agents" or "practitioners" have been made by Home Affairs officials and reported about in the media. As most of my colleagues, I feel personally offended by these remarks, which in relation to IMCOSA and most Immigration Practitioners are unfounded and harmful to our reputation. We are in the process of addressing these allegations through the appropriate channels.

Special dispensation for Zimbabwean citizens / Sondergenehmigungen für Simbabwische Staatsbürger

On 20 September 2010, a special dispensation for Zimbabwean citizens came into place, which will last until the end of the year and will allow "qualifying" Zimbabwean citizens in the country to obtain four-year permits for the purpose of work, business or studies. The permits are free of charge and the requirements minimal – comparable to those for spouses of South African citizens or permanent residents. The information received on who qualifies for these permits and under what circumstances, is often contradictory, and since applicants need to apply in person and give their fingerprints, attorneys and Immigration Practitioners are not involved in the process to be able to report in more detail.

Whilst the prospect of obtaining a four-year permit with comparable ease is extremely tempting for some, others are concerned that giving up their status of "asylum seeker" in the country may lead to them being kicked out at the end of the four-year period. In the meantime, the poor planning of and preparation for this process (quite similar to that of the centralization) has led to violence and unacceptable hardships for those trying to follow the process offered to them.

Conclusion / Abschließend

Whilst there is hope on the horizon regarding the processing of temporary residence applications, we will continue to monitor the progress made and to apply pressure on the Department where and when needed on behalf of our clients. In parallel, our energy will be channeled towards ensuring that the negative impact of the proposed legislative changes will be kept to a minimum, and we may soon call on our clients to support us in this effort.

Bitte melden Sie sich bei uns, falls Sie persönlich und in deutscher Sprache zu den genannten Themen oder generell näher informiert werden möchten.

Best regards, freundliche Grüße

Julia Willand (Managing Director) and the IMCOSA Team

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