The changes to our immigration laws are, on paper, in force and effect as of Monday, 26th May 2014. Since our announcement of February regarding the implementation of changes to the immigration laws announced for 1 April, much has happened. The Department of Home Affairs received a large number of overwhelmingly critical comments from the public and went back to review the draft Regulations and consider the feedback received. IMCOSA and other industry leaders unanimously expected the implementation of the changes not to be effected before the elections were over and the new Minister would have applied his mind to the matter. However, in the night of 18th May and only days before leaving office, Minister Naledi Pandor signed off on the amended and final Regulations with an implementation date of 26th May. All major Home Affairs offices on Tuesday still applied the "old" procedures as they had not been informed otherwise. There are several parties (including our industry association FIPSA) who are preparing legal challenges to the amended laws, which might put the implementation on hold for the moment.
The following is a synopsis of the most significant changes including the latest amendments. Some of the concerning elements in the previous draft were rectified, but other important ones were not and new problems have been added. As to be expected when working in such a rush and without further public input, there are countless errors both in the body of the Regulations and the attached forms.
What immediately and negatively affects foreigners about the lack of notice or transitional provisions is that the new process at the airports has already been implemented, with the effect that persons leaving the country without a valid permit or visa in their passports will no longer be fined, but declared undesirable for between 12 months and five years, irrespective of whether they simply overstayed or correctly and timeously applied for an extension of their status (but not yet received a result due to the backlogs on the side of Home Affairs). As an example, a person whose permit was due to expire on 25 April and who correctly applied for an extension or change of status on or before 26 March, will be declared undesirable for 5 years when leaving the country on 26 May or later without having received the new permit. With current processing times of 3-4 months and more, this leads to an unbearable situation and the Department will be swamped with appeals and waiver requests, and quite possibly court cases against them, as a result.
The overall perception – with a few exceptions - is that the regime will be considerably stricter, leave less loopholes, and make it significantly harder for foreigners and local employers and their foreign employees to be granted a status in the country. Particularly corporate permits and the work permissions under them are affected and make this vehicle a lot less attractive and feasible for corporates. The following are the major changes:
1. As of 2 June 2014, the newly established visa and permit centres will start being rolled out across the country, replacing regional offices of Home Affairs as regards visa and permit matters. On 2 June Visa Facilitation Services (VFS) Centres will be operational in Pretoria, Kimberley and Rustenberg, followed by Durban, Bloemfontein and George on 9 June, Johannesburg on 18 June, Cape Town on 20 June and Polokwane, Nelspruit and Port Elizabeth on 23 June. Applications are made on appointment basis only. There is great scepticism in the industry about Home Affairs outsourcing such an important function to a private service providers, but there is also hope 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: VFS will charge an additional fee of R 1 350 per person (irrespective of the type of application and including for appeals and waivers) 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 / VFS in person when handing their applications in. IMCOSA will continue to assist throughout the immigration process, which includes any follow-ups, liaising with the DHA and document collections, where applicants may choose to be represented by immigration experts as before.
3. Question Marks - DHA has up to date not published the following:
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 might be R 5 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; there has also been made mention of certain mother-tongue level language skills being declared "critical");
4. Stumbling Blocks – What will be harder?
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 language courses, game ranger or surf instructor trainings and the likes, even if the training bodies are registered with the Department of Education.
b. Life partners (of South African citizens / permanent residents OR of foreigners with visas which allow for their family to accompany them) will only qualify for a visa if the partnership has existed for at least 2 years (recently reduced from 5 years). Amongst other things, the relationship must be proven by way of a notarial agreement. If there is the suspicion that a life partnership visa was issued in error or through misrepresentation or fraud, it must be withdrawn immediately.
c. If you want to apply for an extension or change of your existing visa from inside the country, you now have to do so at least 60 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.
d. If you have not received your new visa after the 60 days and your previous status expires, you will be deemed to be illegal in the country. NB: Should you have to leave the country before having received the new status, you will be declared "undesirable" and prevented from returning for a period of at least 12 months. You may appeal this decision or request a waiver, but there is no indication of how long it will take for such an application to be considered.
e. There is no more hope that short-term authorisations to work ("section 11(2) permits") will be extendible beyond 90 days again.
f. Persons arriving in the country on visitor's visas will no longer be allowed to apply for another (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. As an exception, the accompanying family of work or business visas will be permitted to change their status to that of a work or study visa. NB: Working spouses of SA citizens or permanent residents will NOT be allowed to change their status, e.g. change employers or businesses, stop working or similar.
g. 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 or industry they are operating in. This will lead to delays and a decreased predictability of outcome.
h. The Department of Labour, which is historically low in capacity and slow in its delivery has been given a crucial role in the preparation of general work visa applications. Subsequently, the preparation for a general work visa application is expected to take at least 3-6 months. All applicants for a general work permit need to submit a SAQA evaluation of their foreign qualifications (Yes, even if they have none) and proof of registration with a professional body (even if there is no such body for their respective profession or skill).
i. The Department of Labour also holds a deciding role in the context of corporate visas, 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 will be restricted to 3 years, and spaces vacated by candidates can no longer be filled with replacement candidates.
j. Corporate workers will no longer be able to extend their stay or change to another type of visa, nor qualify for permanent residence after 5 years. They are required to provide a SAQA evaluation of their qualification (see above) and a registration with a professional body (both only applicable in a small number of cases).
k. Zero tolerance will be applied with regards to overstaying a visa: even a once-off offence may lead to being declared "undesirable" for between 12 months and 5 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 your/their passports, it is now recommendable that you await the outcome of a pending application in the country (if applicable), or apply for legalisation and a new visa from here.
5. The Bright Side – what is changing for the better:
a. The cumbersome repatriation fee, or deposit, has been done away with.
b. A life partnership between two foreigners no longer has to have been concluded in South Africa.
c. Certain categories of persons who work in South Africa on behalf of an organisation abroad, 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 to perform
vii. Tour leaders or hosts of "such" a tour
d. Study permits for school-going children can be issued for up to 6 / 8 years at a time.
e. 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.
f. The requirements for the intra company transfer visa have stayed substantially the same, whilst the maximum duration will be four instead of two years. The employment with the foreign employer must have lasted at least 6 months before the secondment.
g. A qualifying retiree can now bring along his or her dependents by meeting lower requirements than before.
6. Expiry of Zimbabwean Dispensation Project (ZDP) Permits in 2014
The Department has made various statements regarding concerns about the ZDP permits issued under a special dispensation in 2009 and 2010 coming up for expiry in the coming months. So far, official statements have been reassuring in tone, but vague in content, and it appears that there is a submission before parliament to allow for an extension of the dispensation. It is not known when a decision on this will be taken.
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. IMCOSA will keep you informed via our website and other means regarding the further developments.
Our consultants will be happy to discuss and explore with you your or your organization's options under the new regime. We look forward to hearing from you.
With hope for positive developments and increased clarity going forward.
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