IMCOSA Immigration & Consulting South Africa

UPDATE ON IMMIGRATION MATTERS

22 August 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)

It has been some time since our last newsletter, and in this case the rule of “no news is good news” may cautiously be applied. Although the Home Affairs processes and procedures around temporary and permanent residence permits are still inadequate in a number of ways, the positive trend felt during the first quarter of 2011 still persists. The hearings regarding the Immigration Amendment Bill have been completed and the immigration industry in South Africa is currently awaiting the relevant implementation. Public focus has recently been on the “Zimbabwe Project”, which in its end stages is leaving hundreds of thousands of Zimbabwean nationals without papers or certainty of their future in South Africa.

Home Affairs Update

The Department of Home Affairs’ backlog, as far as IMCOSA’s submissions are concerned, has been largely cleared. The general processing time for temporary residence applications submitted within South Africa is currently 3-4 months (plus minus a month), provided that the application itself is unflawed and a tight follow-up process is applied.

Major problems are caused through the large number of applications going missing in the system, i.e. not being logged onto the Department’s electronic “track & trace” system correctly. Again, a complex set of steps has to be followed to ensure that these applications are processed and finalized correctly.

Another major headache is the large percentage of errors found in the permits that are being issued. Across the industry, the general consent seems to be that over 50% of permits are issued incorrectly, with errors ranging 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. We are finding that the process to rectify these errors regularly takes significantly longer than the original applications.

A serious concern is the fact that in early July 300 contract staff who had been assisting with the permitting process at the Department of Home Affairs’ head office, were released from their duties at once, presumably because their contracts ended. Due to this sudden and enormous drop in capacity, substantial backlogs are expected to build up in the coming weeks and months.

For the moment, the process has however become more predictable and the situation has somewhat stabilized, but whether this trend continues remains to be seen.

Immigration Amendment Bill 2010

The Immigration Amendment Bill of 2010 has been submitted to parliament in its final version, which has not changed in any of the points that we commented on in our last newsletter. To date, it has not been signed into law. In order to be implemented, intricate Regulations have to be drawn up initially, which will prescribe the detail of the law and provide insight into how the new rules are to be interpreted.

The portfolio committee hearings regarding the Bill are over and the industry is now in a waiting position as to when and how information regarding the Regulations will be made public. It is not expected that any wider consultation with the public will take place.

The following points remain a major concern, amongst others:

· 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.

· Application in person: The proposed section will require all applications to be submitted in person, where applications can currently be lodged via courier or through attorneys, advocates and immigration practitioners or their staff. 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. 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 moving to South Africa is a positive one, and we are now working on the various means of ensuring that the immigration process into South Africa remains as smooth and efficient as possible also under new legislation.

· Effective abolishment of exceptional skills permit and replacement of quota by the critical skills permit: South Africa will be losing an important tool to attract highly valuable individuals, we are however investigating best possible alternatives in general and on a case-to-case basis.

Fica and the Freezing of Bank Accounts

More and more foreigners with local bank accounts are experiencing problems when they apply for an extension or change of permit and do not receive their new permits before expiry of the original one. Certain banks have started, systematically and as a matter of policy, to freeze the bank accounts of foreigners on the day that their permits expire. The freezing is done irrespective of whether applications for extensions have been made to Home Affairs, and whether such applications were made well in advance of the expiry date. No intervention has been found to stop or reverse this and letters issued by the regional office of Home Affairs acknowledging responsibility for the delay, or even written support by the Banking Council, have fallen on deaf ears.

The effect of this is that law-abiding persons, apart from having to endure the stress of their new permits not arriving in time and them not being allowed to continue their work or other activity, now have the added pleasure of not being able to access their own funds, of debit orders not being processed, etc.

Fortunately, there are alternatives to this scenario and there are respectable banks who very well understand the problems caused by Home Affairs delays. The freezing of your bank account is therefore avoidable, provided that the necessary steps are taken in advance. Please approach our team if you have questions in this regard or require assistance.

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, has lost much of its relevance to our clients, as all IMCOSA clients involved in this process have in the meantime received their permits. There are important benefits that a judgment in the form of a declaratory order could still yield (e.g. the right to start or continue working after 30 days of having waited for a result), and the matter is therefore still being pursued by us. The next hearing is expected to take place later in the year, and we will continue to serve our clients' best interests in any legal proceedings.

IMCOSA Internal News

IMCOSA Gauteng has moved to larger offices not far from our previous address, and we look forward to welcoming you to our new premises in Unit 1-002, First Floor, Grayston Mews, 134 Grayston Drive, Sandton 2146. Note that our postal address as well as all telephone and fax numbers remain the same, and after an initial technical glitch on the side of Telkom all lines and technical resources are up and running by now.

With regards to the human resources it is with much sadness that we announce the departure of our dear friend and business partner Yasemin Derviscemallioglu, who will be leaving IMCOSA at the end of the month to pursue a career and perhaps further studies in a different field. Yasemin joined IMCOSA in its early days and will be sorely missed by the team and by many of our clients. We wish her all the very best for her future endeavours.

On a happier note we are delighted to welcome into our team four strong additions:

Astrid Popken
Operations Manager (Gauteng office)

Denisha Pillay
Immigration Consultant & Client Manager (Gauteng office)

Abbigale van der Westhuizen
Immigration Assistant & Client Liaison (Cape Town office)

Bronwin Hendricks
Receptionist & Administration Support (Cape Town office)

We are hopeful and confident that our strengthened and enhanced team will be able to further optimise support levels, and as per usual we would appreciate any suggestions our clients and partners may have in this regard.

We thank you for your continued support and we look forward to being in touch with you soon.

Yours sincerely

Julia Willand and the IMCOSA Team


IMCOSA Immigration & Consulting South Africa
Western Cape (021) 462 3184   l   Gauteng (011) 326 5131   l   www.imcosa.co.za