IMCOSA newsletter - 11 February 2013

Dear Clients and Partners,

Although 2013 is well under way, I hope you have had a good rest over the festive season and a pleasant start to this new year. I am told it is the Chinese year of the water snake, which is said to mean that it is a good year for business and for getting things done fast and efficiently. I like that thought - let's hope to see the effect with the Department of Home Affairs as well....

Home Affairs Update

Processing times for temporary residence applications have remained at an average of 4-12 weeks.

In spite of the numerous promises to the contrary, including the Director-General's public statement that all backlogs were going to be cleared by the end of March, there is still very little movement regarding permanent residence applications. It is encouraging that we are receiving faster and better feedback on our enquiries, as well as pro-active calls from the Department regarding pending cases.

In a shock move, the head of permitting in Pretoria issued a communication in late 2012 according to which holders of Intra-Company Transfer Permits and of Corporate Worker Permits were no longer permitted to change their permits from within the country, but had to go to their home countries to do so. Fortunately, this directive was withdrawn by the Director-General at the end of January, who clarified that changing one's status from within the country was very well possible. This withdrawal letter may serve well to support applications for change of status even in other permit categories (mainly change from a visitor's permit to another permit) where there have been occasional problems.

The latest on the change in legislation is that the new (acting) Minister has ordered the amendments to be re-looked at.

This week at the Johannesburg office of Home Affairs, a new rule was implemented that disallows the acceptance of any applications where the applicant's current permit is valid for less than 30 days. (Usually and in line with the legislation, applications are accepted up until the last day of validity of the current permit, provided that good cause for a later submission is given.) The matter is being taken up with HomeAffairs leadership, and we are hopeful that this illegal rule will be retracted soon. In the meantime, we ask that those who are affected by the rule contact our Gauteng office for individual advice and assistance.

Significant Changes to Citizenship Laws

The Citizenship Amendment Act of 2010 and the relevant Regulations of 28 December 2012 have come into effect on 1 January 2013. Changes have also been made to the Births and Deaths Registration Act,1992, which are being implemented bit by bit.

The rules regarding citizenship by naturalisation are stricter (e.g. children born in South Africa to permanent residence holders are no longer automatic citizens by birth; most qualifying periods are longer; persons married to SA citizens no longer enjoy any advantages). On the other side, any child born in the country who has lived in SA for his or her entire life qualifies for naturalisation upon turning 18 – irrespective of the parents' status at the time of birth, or whether the child ever received permanent residence! There is no more advantage in being the spouse of a South African citizen for the purposes of applying for citizenship by naturalisation – all applicants now have the same waiting period of five years. This change is presumably intended to stop abuse of the system through fake marriages.

At one crucial point the Regulations seem to contradict the Act (which would make them ultra vires and therefore challengeable), and this is where they prescribe the length of time that an applicant has to have lived in the country before qualifying for naturalisation.Whilst the Act speaks of 5 years of ordinary residence, the Regulations mention 10. Currently, there are different interpretations of this contradiction amongst officials. IMCOSA will gladly provide further details in individual consultations.

Major Changes:

· The age of majority has beenchanged from 21 to 18.

· A child born to South African parent(s) outside of the country will now be a citizen by birth instead of descent. Births are to be registered with Home Affairs or the SA mission in the country of birth within 30 days of birth (late registration remains possible,but will require additional information/documentation and a fee may be charged).

· The child of permanentresident(s) born inside the country only qualifies for citizenship by birth on his or her 18th birthday, and only if he or she has livedin South Africa his or her entire life. NB: The term "qualifies" suggests that there has to be an application, i.e. it may not be automatic, which could then affect the original citizenship (e.g. would lead to loss of citizenship by a German citizen). Whether this is, in fact, the case will have to be established once the procedures have been clarified on the side of Home Affairs.

· A child of parents who are not SA citizens or permanent residents (this would presumably include temporary residence holders, refugees and potentially even illegal immigrants) born inside the country, who has lived in South Africa his or her entire life qualifies for citizenship by naturalisation on his/her 18th birthday.

· When applying for citizenship by naturalisation, proof is to be provided that the country of origin allows dual citizenship. Alternatively, the original citizenship needs to be renounced within 6 months from receipt of conditional approval of South African citizenship.

· Citizenship by descent has been simplified and now only exists for children of a different nationality who are adopted by SA citizens.

· In case of having lost citizenship, and provided one has been granted permanent residence, one can apply for resumption of citizenship after having been permanently resident in the country for at least 1 year. Here, too, proof of permission to hold dualcitizenship is required, OR the former citizenship has to be renounced within 6 months.

· From 4 March 2013, there will no longer be abridged birth certificates, but only unabridged ones which will be issued on the spot for new-borns, at no cost.

Legal Action against the Department

A meeting with senior officials scheduled for December was postponed and we are currently working on confirming a new date. The Minister of Home Affairs has stated her willingness to engage with Immigration Practitioners through our industry body FIPSA and a meeting is to take place in the coming weeks. Depending on how soon these meetings do, in fact, take place and on their outcome, legal action may still have to be pursued by a group of immigration firms.

In the meantime, we are obtaining a legal opinion on some of the issues that have been problematic (amongst others, the possibility to change status whilst in the country), and this should be useful for our negotiations with the Department.

IMCOSA Internal

We are saying good-bye to Abbigale van der Westhuizen, who is seeking new challenges in a different professional field. We wish her all the very best in that.

A special thank you to Nazley Langeveldt and Nicola Raubenheimer, who have this month been with IMCOSA for a whopping five years and who have played a pivotal role in making IMCOSA what it is today.

Some more good news for a few of our cliens: We are happy to announce that our Cape Town office now has an allocated parking spot for clients inside Roeland Square. We hope that this will make your visits even more pleasant and hassle-free. To avoid misunderstandings kindly give us a quick call prior to your visit to confirm parking availability.

And lastly a quick mention that IMCOSA is sponsoring and promoting the start-up operation of our friend Lulama, who is now offering township tours in Hout Bay / Cape Town in the friendliest of atmospheres. Kindly visit www.townshiptours-capetown.co.za, book a tour and enjoy the eye-opening experience. Your support is massively appreciated and will directly reach those in need.

As always, your comments and questions regarding this newsletter and our service in general are most welcome.

We wish you all the best and send warm regards

Julia Willand and the IMCOSA Team

IMCOSA - Immigration Consultants South Africa - Visa Services, Immigration Agents