Dear Clients, Partners and Friends,

As we steer our ship through post-Covid waters, South Africa is alive with possibilities once again. Tourism and business activities are being revived, and despite the latest round of loadshedding, the nation continues to show resilience in the face of the challenges which life in this incredible country entails. Immigration is a hot topic at the moment, and articles are published almost daily on investigations, arrests and measures being put in place against undocumented foreigners, the production and possession of fraudulent documents, and corruption within the Department of Home Affairs.

The Minister’s anti-corruption stance is laudable and some of his actions welcomed. At the same time, certain measures are negatively affecting regular, legitimate immigration. The additional hurdles and checks put in place to prevent fraud and corruption are not backed by the necessary capacity and systems, and therefore lead to unprecedented backlogs. The many suspensions lead to officials being scared to take any decisions at all or, to avoid accusations of misconduct, rejecting perfectly compliant applications.

Processing times are the worst we have seen in 20 years, for applications submitted in South Africa as well as at foreign offices (embassies, high commissions and VFS locations), and when results are received the quality of decision-making is poor. Available routes for work visas have been significantly reduced and highly skilled foreigners who are desperately needed to facilitate investment and job creation are facing substantial roadblocks in making their visa applications. Permanent residence applications are in a backlog of more than 5 years, resulting in even higher numbers of temporary residence applications and further clogs in the system. The visa system is in crisis. The only beacon of hope are the courts as I will elaborate on below, and – BREAKING NEWS – some positive changes to the critical skills list, which were published on 1 August.

 

Today`s  update includes the latest news on the following:

  • Changes to the critical skills list, new critical skills list in practice
  • Centralisation of overseas applications leading to backlogs
  • Legitimate immigrants as collateral damage to misinformed reform efforts
  • Local backlogs and special concessions to help counter them
  • Positive signals from the courts

By popular demand, the following are re-posted here:

  • Options for Zimbabwean ZEP holders after the discontinuation of the Zimbabwe exemption permit
  • How can employers of non-South African staff ensure they are visa compliant?


For details, please scroll down.

As always, thank you for your interest, and hopefully we will be able to share more pleasant news on immigration tendencies and developments in our next newsletters.

 

Yours sincerely,

Julia Willand


Changes to the Critical Skills List, and 2022 list in practice

As per 1 August, an amended critical skills list was published. Major changes are:

  • A list of over 30 medical professions was added to the list, including dentists, specialist doctors, radiologists, psychiatrists and industrial pharmacists.
  • The requirement for registration with a professions body (one of the difficulties introduced in 2022 mentioned below) has apparently been softened:
    • Most professions (with exception of the medical professions who correctly need to register with the Health Professionals Council) no longer have a specific professional body prescribed, which adds important flexibility.
    • Although the chosen wording is peculiar, it is possible that only those candidates need to provide professional registration in whose professions such registration is required by law. This is in line with the word of the law, but its application in practice will have to be tested and observed.

We will keep you updated on how these latest changes are applied on the ground.

The critical skills visa is regularly punted as the go-to solution for our skills shortage, for those complaining about restrictive work visa rules, or about their/their staff’s ZEP permits not being extended. When the new critical skills list was published in February, we reported about some interesting new categories, but also the hidden restrictions through higher education requirements. 6 months down the line, what is our practical experience with the new critical skills list?

  • Most people who want to work or are already working in South Africa, do not meet its requirements. With the general work visa category being obsolete (the Department of Labour practically never issues the required recommendation, and Home Affairs no longer grants exemptions from this requirement), skilled and long-serving staff (including in top management positions) often have to leave the country and are lost to their employers.
  • The high formal education requirements that were introduced with the new list are making the pool of qualifying applicants even smaller.
  • Those who do have the educational requirements, often lack sufficient work experience to be “professionally” registered as is now required. Hardest hit are local graduates who, by directive of  February, can no longer apply on graduation. Most affected are scientists, engineers and auditors. These home-grown skills are being lost to the country.
  • Even those overseas candidates who have the formal qualifications and work experience can often still not qualify, because for their professional registration, they need local work experience, which in turn they cannot gain without a work visa – a vicious cycle.
  • The few who meet all the requirements have to wait up to 6 months for the SAQA to evaluate their qualifications, and sometimes another 6-9 months for the professional bodies to complete their registration process (we expect some relief here soon, as per the above). Neither their prospective employers nor they are usually prepared to wait this long.

So much for skills attraction.

Despite the challenges set out above, there may still be solutions that can be found for your scenario. We assess each case individually and welcome your enquiries.


Centralisation of overseas visa applications leading to backlogs

Historically, applications for temporary visas of all categories submitted to South Africa`s many foreign missions in the various countries were processed and adjudicated locally by those missions` officials. Processing times and application of the immigration laws differed between missions, sometimes significantly. But many missions were functional and relatively predictable in both timing and content of their decisions, with most completing applications within 2-3 months.

Come early 2022 and the Minister`s endeavour to re-gain control over his Department, and all visa applications submitted abroad (with study visas and short-term tourist visas being the exception) are now forwarded to Pretoria for assessment and decision-making. Now, with a drastic and fundamental procedural change like this, you would imagine a sizeable unit of well-trained and capacitated officials at the ready to go through efficient and streamlined processes when attending to these thousands of applications pouring in. It appears reality is far from it. Each application goes through no less than seven steps, including two separate stints on Director-General (alternatively Chief Director, in one case) level, before being completed. Common sense would suggest that sheer volumes will prevent any meaningful oversight. And that significant delays will occur, which is what we are starting to see now.

In short:

  • All visa applications that are submitted through a South African mission abroad (i.e. all first-time applications) are now forwarded to Pretoria for decision-making.
  • Processing times are up from previous 2-3 months to 4-6 months upwards (some missions advise of 9 months).
  • Exceptions are a) short-term visitor`s / tourist visas, and b) study visas, which are still processed at the missions as per usual.
  • However, if one family member applies for a study visa, and another for a different category, this may mean that BOTH the process at the mission AND the process in Pretoria have to be followed (not at the same time, but instead one after the other, adding up to a waiting time of 6-8 months plus for that family).

This means:

  • If you are preparing for an overseas application or awaiting an outcome of one, please expect significant delays and plan accordingly.
  • If you are in the early stages of planning your move to South Africa, start the process well ahead of your intended move date.
  • Despite these long processing times, many missions still insist on keeping applicants` passports during the entire processing time. Please speak to our consultants for further advice on this.

We will keep you informed of further developments in this. Please also look out for our news alerts on the IMCOSA website.


Legitimate immigrants as collateral damage to misinformed reform attempts

Let me be clear: Although not surprised, we are as upset about reports of corruption as anyone else in South Africa. We fully support all efforts to fight it within Home Affairs and to counter fraud by unscrupulous applicants and those who assist them. They are what hinders due, predictable and functional process and what makes it hard for our consultants to explain to clients why they have to undergo such onerous processes when seemingly less deserving individuals come into the country so easily.

However, problems arise when perfectly legal and legitimate ways of obtaining residence in our country are conflated with illegitimate ones, and when poor legal knowledge and lazy research and reporting make well-established and balanced laws sound unreasonable. This misinformation leads to negative public sentiments that create a hostile atmosphere for non-South Africans, can make officials too fearful to approve applications, and result in unconsidered and unduly restrictive policy and procedural changes.

Amongst some valid and important findings, the report by the Ministerial Committee Reviewing Permits and Visas also contains a number of points that are not based in law, are one-sided, assumptive, incendiary and xenophobic. Going beyond the panel`s expertise and scope (of investigating irregular patterns in the issuing of visas and permits), they make unfounded and problematic suggestions on immigration policy. If we were to give them, and the Minister`s announcement to “review and streamline the country`s visa system” and to “tighten citizenship laws” (just given the green light, in principle, by the ANC) any weight, we would have to warn you that:

  • There may soon be a minimum retirement age for retirement visas.
  • The minimum retirement income may be increased.
  • Changing visa categories within the country may be restricted.
  • Further hurdles for permanent residence applications may be introduced.

Let us hope this is more hot air than serious policy input, and that our Minister spares some of his energy for addressing the serious challenges that legitimate applicants and their employers who are desperately waiting for them, are facing.


Local backlogs and special concessions to help counter them 

Frustrated about the long processing times for local applications? Due to a number of factors, applications made in South Africa are currently taking extraordinarily long to be finalised, sometimes up to a year or longer. In recognition of this, the Minister allowed those who (entered the country legally and) applied for a waiver or for temporary residence visa (any category) to continue their activities as per their last visas, OR leave the country without being declared undesirable. Those awaiting long-term visas can return as visitors to collect their outcomes. As per decision of April, this permission was given until 30 June 2022, and at the end of June, it was extended until 30 September 2022. Although not a satisfactory solution, at least this brings some relief to aggrieved parties.

As per usual, you are welcome to contact our team with any questions you may have.


Positive signals from the courts

Court applications are being made by applicants affected by undue delays, unfair rejections and prejudicial rules and processes in the numbers, and most are successful. At this point, taking the Department to court is often the most auspicious route to success. One important example is:

  • The Western Cape High Court ruled in June that parents of minor South African citizens or permanent residents, when their relationships with their South African partners terminate, must be allowed to apply for an appropriate visa from within the country, and by virtue of their parental duties to the child, be allowed to continue working in the country.

The implementation of this decision will have to be monitored. Contact us for more information.


Options for Zimbabwean ZEP holders after the discontinuation of the Zimbabwe exemption permit (repeat)

After 13 years of various exemptions for Zimbabwean nationals living in South Africa, the South African Cabinet discontinued this special dispensation. All Zimbabwe Exemption Permits (ZEP, as they were most recently called), subsequently expired on 31 December 2021. Holders of ZEP permits were given a 12-month grace period in which they may apply for any of the ordinary visas from within South Africa. If they do not qualify or otherwise fail to secure a visa, they have to leave the country by 31 December 2022. ZEP holders can continue to exit and re-enter South Africa, work or follow other activities during 2022.

The following common scenarios can open up mainstream visa options to ZEP holders:

  • Married to / life partner of a South African citizen or permanent resident.
  • Younger than 25 and job offer.
  • Critical skills that fall under the new list, including formal qualification and professional registration requirements.  
  • Work history with local employer and compelling and verifiable reasons why they cannot be replaced with a South African (the bar for this is high).
  • Own business with substantial investment and several South African employees.
  • Students with option to work part-time.
  • Immediate family (parent or child) who is a South African citizen or permanent resident.

An individual, case-by-case assessment is required to confirm whether or not a ZEP holder qualifies for a mainstream visa, and which route is most suitable for them.


How can employers of non-South African staff ensure they are visa compliant? (repeat)

If ever there was a time to cover your bases in terms of your non-South African employees’ visa statuses, it is now. The Departments of Home Affairs and Labour have started inspecting businesses for their immigration compliance, arresting un- or insufficiently documented persons found working on business premises, and issuing heavy fines to employers. These efforts at protecting the labour market from illegal practices are said to be intensified in the coming months.

To support you in this, we perform full visa and permit compliance audits, verify your employees’ visas’ and permits’ authenticity and validity, advise you on available visa options, and help your qualifying employees secure the relevant status.