Dear Clients, Partners and Friends,
As we advance into 2024, significant developments unfold in South Africa’s visa and immigration landscape. The impending general elections on May 29th intensify the pressure on the ruling ANC, amidst escalating concerns over visa delays, departmental chaos, inconsistent policy decisions, and insufficient implementation of key recommendations. Daily reports shed light on the challenges, occasionally resulting in decisions that attempt to pacify the public but lack substantive impact.
The nexus between migration policy, tourism, and the broader economy, including employment, remains undeniable. Home Affairs demands urgent rectification, underscored by the recent presidential approval of a major investigation into corruption and mismanagement within the department. We hope this marks the beginning of a genuine overhaul with swift and tangible results.
Today’s update covers:
- The repercussions of a flawed travel directive affecting seasonal tourists.
- New draft Regulations featuring a digital nomad visa, points-based system, and other changes.
- A critical analysis of the White Paper on Citizenship, Immigration, and Refugee Protection.
- Insights into the Trusted Employer Scheme (TES) benefiting large corporates.
- Legal compliance alert: Proactive verification of non-national staff status is imperative.
- Progress on the Start-Up Visa proposal.
- The ongoing uncertainty surrounding the Zimbabwe Exemption Permit (ZEP) regime.
- Backlogs and processing times update.
For detailed information, kindly scroll down.
Yours sincerely,
Julia Willand
Repercussions of a flawed travel directive affect seasonal tourists
An apparent logical error in the latest travel directive dated 21 December 2023 put a cold stop to holiday plans of hundreds of visitors who planned to spend the Southern summer in South Africa. It provided that tourists awaiting extensions of their visas (i.e. fully compliant with the law) had to leave by 29 February, if Home Affairs had not taken a decision by the time of their return home. This is if they did not want to risk being banned from coming back for 1-5 years. Despite public outcries about the country losing foreign currency, jobs and its international standing as a top tourism destination, the Minister’s lack of, then late and eventually inconsistent response exacerbated the issue, causing harm to the tourism industry.
What now? If you went the safe route, left the county by 29th February, and want to come back to enjoy the rest of your planned stay here, make sure to let passport officials know that you are returning from your home country, and double-check the date that is inserted by hand on the entry stamp in your passport (make sure it is the full period you are eligible for and not only the 7 days that are granted to border hoppers). If you trusted the Minister and his Department and stayed, wait for your outcome at least until your maximum stay of 180 days in total.
New draft Regulations: Digital nomad visa, points-based system, easing of critical skills visa processes, and relief for parents of minor SA citizens
Our analysis of the latest draft Regulations reveals overdue aligning, reassuring elements, half-exciting prospects, and rushed drafting:
- Aligning with existing directives, radiological reports are abolished; police clearances only required for 5 years pre application; and spouses and minor children of SA citizens and permanent residents can apply for long-term visas in-country after having entered as tourists.
- In reassuring compliance with a Constitutional Court order of late 2023, parents of SA citizen or permanent resident children (presumably minors only), who previously held spousal visas (but are no longer in the relationship) and are fulfilling their parental obligations towards the child, are to be able to apply for another type of visa in-country.
- Half-exciting prospects:
- The Digital Nomad Visa could be issued for up to three years to persons working for foreign employers with a minimum income of R 1million per annum. The amount seems unnecessarily high, considering international best cases and local cost of living. Provisions relating to tax obligations have caused confusion.
- Critical Skills Visa: Some relief regarding the professional body membership requirement comes with the proposal that Critical Skills Visas be issued for 12 months whilst the registration process is ongoing, and for five years once it is completed.
- Points-based work visa system: Adopting such a system similar to that of Australia or Canada has been in the discussion for some time. Considering factors like age, qualifications, language skills, work experience, offer of employment, and “ability to adapt in the Republic” (however this may be defined), may allow for greater flexibility and make the system more modern and responsive to developments in the labour market. Unfortunately, the current draft seems to suggest these considerations be applied on top of existing criteria and processes, not replace them. Extra layers of administrative steps would only exacerbate the current regime’s red tape.
- Simply placing a points-based system on top of an existing complex and rigid one, appears to be a hasty and clumsy attempt to respond to recommendations from the Presidential Operation Vulindlela report in time before the elections. In the same rush, further technical errors were made in the draft, which will hopefully be corrected before implementation.
The draft Regulations are out for comment until 29th March, which means the final version could be implemented around mid-year.
Immigration Policy: A so-called White Paper vs genuine efforts at improvement
Touted as a “complete overhaul”, the Ministry of Home Affairs published the extensive new “White Paper on Citizenship, Immigration and Refugee Protection” in November 2023. Placing the blame for backlogs, irregular migration, inefficiency, fraud and corruption everywhere but in its own back yard, it is a thinly veiled pre-election obfuscation of the Department’s own failure to deliver. The paper seeks to severely curtail refugee rights, fuels xenophobia and proposes wide-ranging measures that are unnecessary and entirely ill-suited to resolve the issues at hand. One analyst commented, “… it was designed primarily to give the governing party a narrative for the upcoming election, rather than to reform the migration governance regime.” I agree with him, and with others who have asked for the entire white paper to be scrapped because it is so deeply problematic. Earlier white papers on migration (most recently from 2017 and 2019) were not acted on, and following the elections, we hope that this recent release will face a similar fate.
In contrast, the Westen Cape government, through a team of immigration consultants, has embarked on a stakeholder engagement project to identify key challenges and devise practical solutions in the immigration domain. IMCOSA was invited to participate in the process as a stakeholder, and we were pleased to experience pro-active, hands-on and transparent efforts to improve the system.
Trusted Employer Scheme (TES) smooths the way for large corporates with international teams
A positive development unfolds as 65 corporate employers have been accepted into the new Trusted Employer Scheme (TES). After their successful vetting and having met a set of stringent criteria, their expat employees are now exempt from certain document requirements, or may provide them late, significantly reducing on-boarding lead times.
While a welcome initiative, it caters to a select few, leaving a majority grappling with complex processes, backlogs, and adjudication quality concerns.
Legal compliance alert: Verify non-national staff status now – ignoring the issue is risky!
Proactively managing the risk of non-compliance becomes paramount for businesses reliant on diverse, non-South African teams. Employers, as underlined by a recent statement from Minister of Home Affairs Dr. Aaron Motsoaledi, bear the responsibility of ensuring their team possesses the correct documentation. Joint inspections by various authorities are planned to enforce compliance with applicable laws.
Multiple factors lead to a high prevalence of fraudulent or otherwise irregular documents used by non-South Africans living and working in the country. On 5 March, the Department of Home Affairs reported on its findings of over 45 000 fraudulent visas and permits issued between 2014 and 2021, and on action taken against those involved. It is difficult for employers to identify documents as irregular, and this puts them at risk of fines, reputational damage, having to let go key staff overnight, and even arrest.
Employers can safeguard themselves and their businesses, and manage their risk by having their staff’s and new recruits’ documents verified well before any inspections take place. IMCOSA offers a verification service that produces certificates confirming the validity or irregularity of staff statuses.
For full compliance, predictability, and peace of mind, let us secure swift and dependable verifications for you and your teams.
Progress on the Start-Up Visa proposal
The new “Start-Up Visa”, a recommendation from the President’s Operation Vulindlela report, may soon become a reality. The Department of Trade, Industry and Competition (DTIC) has initiated research, engaging stakeholders to formulate concrete ideas on how the visa could be structured to best serve the country’s needs. IMCOSA was invited to provide input and share ideas with the research team, and we will keep you updated on further developments.
Ongoing uncertainty surrounding the Zimbabwe Exemption Permit (ZEP) regime
The future of the Zimbabwe Exemption Permit scheme remains uncertain. Home Affairs Minister Aaron Motsoaledi terminated the scheme in December 2021, leading to legal battles and court decisions extending the rights flowing from the ZEP permits until June 2024. Despite recent setbacks in the Supreme Court of Appeal (SCA), the Minister has lodged an application for leave to appeal to the Constitutional Court. As it stands, ZEP holders are allowed to live, work, study, or conduct business in the country until November 29, 2024.
Backlogs and processing times
According to media statements by the Department of Home Affairs, backlogs persist at over 74 000 for visas and 44 000 for permanent residence applications. The Minister’s self-set deadline of June 2024 to clear this backlog was pushed back to November 2024. Notably, a change in delegations, effective as of 15 February, holds promise for faster turn-around times, although the full effects are yet to be realized.
The below processing times represent very rough averages only and should not be relied upon or taken as legal advice. Please speak to your consultant for case-specific estimates.
- Permanent Residence: Critical skills, 5-year worker and business 6-12 months; all others 3-5 years and longer (some exceptions in financial independence: 6-18 months)
- Temporary visa applications: tourist visa extensions 3-4 months; critical skills and business visas 1-3 months; study visas 3-7 months, all others 12 months and more
- Visa applications abroad: 2-16 weeks, depending on category and location
- Appeals: temporary residence 12 months and more; permanent residence at least 18 months (some now received within 12 months)
- Citizenship: certain processes 4-6 months, others significantly longer
Top challenges (unchanged):
- Visas for family members accompanying work, business or study visa holders
- Visas for spouses of South African citizens or permanent residents
While applications managed by IMCOSA still enjoy a high success rate, unfounded rejections are encountered from time to time. By promptly adjusting our advice to changing trends and providing cautious guidance, we manage to keep these cases to a minimum.
For any questions regarding active or planned applications, feel free to reach out to us.
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