New immigration laws
In view of the upcoming changes in the immigration regulations, IMCOSA released the following newsletter on the 20th of February 2014.
UPDATE ON IMMIGRATION MATTERS
20 February 2014
Dear Clients, Friends and Partners,
NOTE: The content of the Regulations may well change once DHA has received public comment. Whilst no significant amendments to this latest draft are expected to be made, I have not mentioned here some of the problematic changes that we are still fighting and hoping to see resolved.
The general feeling conveyed in these latest draft Regulations, and in the way they interpret the Amendment Acts, is that of a government department wanting to take a stand. The DHA is done with putting up with foreigners who feel they can take them for a ride, frequently overstaying their permits and getting nothing more than a slap on the wrist for it, if anything. The DHA is done with investors who have no significant funds and who sneak their way through to long-term permits in spite of it, often avoiding the obligation to create employment. The DHA is done with persons obtaining a status in the country through fraud, marriages of convenience, and "creative accounting". They are done with persons abusing the system. And they say they are done with corruption.
So the intention is to close a whole number of loopholes that exist in the law. The stated intention is to open the country to skills and "real" investment. And to improve the internal systems and fight corruption. And it appears that DHA wants to create a system that is more flexible to react swiftly to trends and developments (thereby conveniently ridding themselves of certain accountability and monitoring processes). How is all this going to be achieved, or not?
1. As of 1 May 2014, a pilot project will be run in the DHA offices of Pretoria, Kimberley and Rustenberg, which will be fully rolled out in 11 cities across the country on 1 June 2014. Home Affairs regional and local offices will be replaced by so-called Visa Facilitation Service (VFS) centres, quite similar to those that many countries already use for their visa services through their missions abroad. The idea is for the service to become more professional, for files to be scanned and sent onto DHA both electronically and physically, and for errors, corruption at the counters, delays and loss of documents to be eliminated. Flag: Whilst this sounds like a fairytale come true, it is clear that DHA have not fully thought this through and that there will be massive teething problems before the system can function smoothly. Also, VFS will charge an additional fee on top of the administrative fee that DHA charges.
2. Personal appearance: All applicants, whether first-time or repeat, locally or abroad, will have to appear before DHA (or VFS) in person when handing their applications in. Within all areas such as application preparations, follow-ups, liaising and collection, applicants can continue to be represented by immigration experts.
3. Presumably for maximum flexibility and autonomy, DHA has left out of the Regulations any amounts relating to fees, fines, investment, financial means or income criteria, as well as critical skills list, lists of industries that are in the national interest etc. Therefore, what we currently do not know and can only try not to have nightmares about, are:
a. Application fees;
b. Required financial means for tourist, study, relatives', and long-term visitor's visas;
c. Required investment amounts for business permits (according to rumours, this can be as high as R 8 million), and industries who may be considered for exemption due to being in the national interest;
d. Required retirement income for pensioners and retirees;
e. Professional categories and occupational classes qualifying for critical skills visas, and for permanent residence in the quota and in the critical skills categories (statements by DHA mentioned civil, chemical, electrical and mechanical engineers, agronomists, suitably qualified artisans, scientists, senior project managers, environmental experts, ICT specialists and economic planners);
f. How the so-called "section 11(2)" system will be working for short and longer-term work, and inhowfar short-term visas for work purposes will offer an alternative.
4. So, where will things become tougher?
a. Study permits, short and long-term, will only be issued for studies at institutions of higher learning (universities), FET colleges and primary or secondary schools. There will be no more study permits for things like language courses, game ranger or kite surfing instructor trainings, even if the training body is registered with the Department of Education.
b. Life partnerships will only be accepted as a basis for an application once they have existed for at least 5 years. Good news for marriage officers!
c. All persons who are not South African citizens have to keep DHA up to date regarding their address and other contact details at all times.
d. Documentary requirements for travelling with children (especially when only one parent travels with the child) will be stricter.
e. If you want to apply for an extension or change of your existing visa from inside the country, you have to do so at least 30 days prior to expiry of such permit. There will no longer be exemptions and condoning of late submissions. If you are late, you will have to leave the country and apply from abroad.
f. There will no longer be the option of handing certain documents in later (e.g. police reports within 6 months of application). All applications will have to be 100% complete. Diligent planning ahead will be required.
g. Persons holding visitor's (or medical treatment) visas will no longer be allowed to apply for a different (longer-term) visa from inside the country. As a consequence, most first-time applications will have to be made abroad, taking away much-needed flexibility.
h. Investors and business visa holders have to create and maintain a staff complement of at least 60% permanently employed SA citizens or permanent residents. Also, a recommendation by the Department of Trade and Industry (DTI) will be required for every application, irrespective of the investment amount. This will lead to delays and a decreased predictability of outcome.
i. The Department of Labour, which is historically low in capacity, slow in its delivery and not particularly supportive of foreigners taking local jobs, has been given a crucial role in the preparation of general work visas. Subsequently, this category of visa will no longer serve as a fall-back option when all else fails.
j. The deciding role that the Department of Labour has lately been taking in the context of corporate visas, has been confirmed, which will continue to cause delays and substantially less predictable outcomes. Further, companies applying for corporate visas will have to keep a staff complement of at least 60% permanently employed South African citizens or permanent residents. Corporate visas may potentially be restricted to seasonal work, bilateral agreements, and the mining or construction sectors (wording is unclear in this regard).
k. Persons having held corporate worker permits, visas or certificates for at least 5 years will no longer qualify for permanent residence.
l. Zero tolerance will be applied with regards to overstaying a visa: even a once-off offence may lead to being declared "undesirable" for between 2and 10 years (depending on the length of the overstay), which means no visas or entries will be permitted for the time of undesirability. On application to the Minister, the status can be lifted.
→ If you, or any of your staff, do not have a valid permit in their passports, we recommend that they leave the country now and pay the (relatively low) fine. They will not get off this lightly again.
m. Hotels, guesthouses, apartment landlords etc. will have to keep records of their foreign guests / tenants, including passport and visa copy, address and signature, for 2 years.
5. There are a few positives, though:
a. The cumbersome repatriation fee, or deposit, has been done away with.
b. Persons will be able to apply for permanent residence anywhere in the country (irrespective of their place of work or residence), and even if they only hold visitor's visas. The same flexibility with regards to location may apply to applications for change or extension of a temporary visa inside the country (depending on interpretation).
c. Certain categories of persons who work in South Africa on behalf of an overseas organisation, will be able to receive easier work authorisations for up to three years:
i. Teachers at international schools
ii. Members of film crews
iii. Foreign journalists seconded to SA by foreign news agency
iv. Visiting professors or lecturers
v. Artists who wish to write, paint or sculpt
vi. Persons in the entertainment industry, travelling through SA to perform
vii. Tour leaders or hosts of "such" a tour
d. The critical skills visa appears to have different, but slightly less onerous requirements than its predecessors, the exceptional skills permit and the quota work permit. The critical skills visa does not require a work offer, can be issued for up to five years and is extended fairly easily.
e. The requirements for the intra company transfer visa have remained substantially the same, whilst the maximum duration will be four instead of the current two years.
f. A qualifying retiree can now bring along his or her dependents by meeting lower requirements than before.
Both directly, and through the professional association of Immigration Practitioners (FIPSA), IMCOSA continues to liaise with the DHA's senior officials and the Minister of Home Affairs in order to achieve the best possible immigration and visa conditions for our clients.
Should your organisation wish to make direct representations relating to the draft Regulations, the written submission must be sent to the DHA on or before 28 February:
Fax: 0865 144 267
Please do contact your client manager or myself should you require an assessment of your company's or your personal circumstances under the coming regulations. As per usual we will do all we can to make your immigration processes as smooth and efficient as possible.
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