Newsletter November 2024

Dear Clients, Partners and Friends,

Much is in motion in the Ministry and Department of Home Affairs. Minister Schreiber, in office since July, is starting to tackle a wide range of issues that have been haunting his Department for as long as we can remember. Amongst others, they are: Fighting corruption and undocumented migration, making long-outstanding legislative changes, reviving of the Immigration Advisory Board (which I formerly served on) after a 10-year hiatus, pushing for digitisation, phasing-in of Smart ID cards for naturalised citizens, and importantly, pushing along a major backlog eradication project aimed at clearing applications stuck in the system for years. 

He is a fast shooter, and although this sometimes leads to premature and not entirely thought-through directives, the energy itself, his willingness to correct errors swiftly, and his deep understanding of public administration are very welcome. The proof is in the pudding, and the devil in the detail, so the coming months will really put this Minister to the test.

Today’s update covers:

• New Points-Based System: The General Work Visa is back
• Digital Nomads and Remote Workers now welcome in South Africa! Or are they?
• Visa & Immigration Backlog Project – A wave of results, but also undue rejections
• What about the Travel Directive?
• Good news for parents of South African children post-separation/divorce
• Backlogs & processing times: Latest trends

For more information, scroll down or follow us on LinkedIn and Facebook for live updates.

This is our final newsletter for 2024, and on behalf of the entire team, I want to express our sincere thanks for your trust, collaboration and continued support. The year was not without its challenges, but we are thrilled to have been able to deliver much positive news and be part of making so many dreams come true. Wishing you a wonderful and relaxing festive season and a refreshed and inspired start to 2025. 

Yours sincerely,

Julia Willand

New Points-Based System: The General Work Visa is Back

South Africa has finally resuscitated the long-lost general work visa. With the introduction of the Points-Based System (PBS) and related administrative tweaks, existing hurdles and practical challenges have been removed for many whose skills and experience are urgently needed and will benefit South Africa. The PBS is proving to be an excellent visa option for experienced executives and high-income earning academics. Key changes, some of which  also benefit critical skills visa applicants, are: 

• Applications for Critical Skills or General Work Visas can be made even if the evaluation of formal qualifications by SAQA has not yet been received. In this case, work visas are issued for 12 months. Importantly, once the SAQA evaluation is received, visas are extended to the maximum duration without a full new application being necessary. (Practical challenges are envisaged around registering with professional bodies without a SAQA certificate. We will monitor and report back on this.)
• The Critical Skills Visa remains in place. Applications in this category continue to be open for those falling within the critical skills list.
• All others can qualify for a General Work Visa by meeting a threshold of 100 points under the new PBS. A recommendation by the Department of Labour is no longer required. 
• Employees of companies registered with Home Affairs under the Trusted Employer Scheme (TES) benefit from additional points, but have to comply with all remaining requirements of a general work visa (unless agreed otherwise with Home Affairs).

Points are allocated as follows (updated on 18 October 2024):

Applicants can qualify through a variety of combinations of formal qualifications, salary (about R 55 000+ or R 80 000+ p/m), work experience (5+ or 10+ years), English (or other official) language skills, and/or the prospective employer being registered with Home Affairs under the Trusted Employer Scheme (TES). 

Examples meeting the criteria are: 

1. Masters or Doctoral degree + Monthly salary of R 80 000, no work experience
2. Honours or Bachelor’s degree + Monthly salary of R 80 000 + 5 yrs work experience
3. Masters or Doctoral degree + Monthly salary of R 55 000 + 10 yrs work experience
4. Masters or Doctoral degree + Monthly salary of R 55 000 + 5 yrs work experience + Proficiency in English
5. Employed by Trusted Employer under TES + Monthly salary of R 80 000 + 5 yrs work experience

The latest changes seek to make the work visa system more predictable and fair, and to allow for a greater variety of scenarios and constellations than before. At the same time, it maintains rigorous standards for those seeking to work in South Africa and to contribute to its economy. Unfortunately, some foreign nationals who could contribute meaningfully to the South African economy remain excluded, e.g. PhD holders with less than 10 years’ experience and a monthly salary of less than R 80 000, or extremely well-paid Managers with decades of specialised experience but no university degree. It is to be hoped that these cases will continue to be considered via individual exemptions. 

Digital Nomads and Remote Workers now welcome in South Africa! Or are they?

The i’s have been dotted and the t’s have been crossed on the Digital Nomad Visa rules. The requirements are now confirmed as:

1. Contract of employment with an employer outside South Africa
2. Gross salary of at least R 650 796 per annum
3. Return flight ticket (for visas longer than 1 year, practicalities will have to be tested)
4. Registration for income tax with the South African Revenue Service (unless you are tax registered in a country that has a double taxation agreement with South Africa, in which case you only need to register for tax in South Africa if you are in the country for more than 183 days per annum)

The visa can be issued for a period of up to 3 years and does not lead to permanent residence. It must be applied for from outside South Africa and cannot be changed to another type of visa from within South Africa. 

If you are working for your own business, hold an employment contract and receive the required salary, you will possibly qualify for the visa. Sadly, the law seems to exclude freelancers and consultants who work outside of formal employment and fixed salaries. 

At the time of writing, none of the major South African missions abroad have confirmed that they are actually accepting applications for Digital Nomad Visas. We are hoping this will change sooner rather than later. 

Visa & Immigration Backlog Project – A wave of results, but also undue rejections

Those of you who have been following our newsletters would be aware that over the past 5-or-so years, the Department of Home Affairs (DHA) built up substantial backlogs in the processing of visas and permanent residence permits (mention was made of over 300 000 pending applications in the system). The new Minister of Home Affairs continued efforts by his predecessor to eradicate the bottlenecks with the help of a backlog project team. The team is being assisted by private sector resources and officials from different divisions within DHA who were given minimal training and who are involved in assessing applications, verifying supporting documents and recommending decisions. The backlog project will end on 31 December 2024, but the unit is working overtime trying to finalise its work in November 2024.

We are seeing the effect of the measures taken in the form of a daily flow of results for applications made any time between a few months and many years ago. This comes as an enormous relief to so many who have been desperately waiting for outcomes. For new applications, the DHA’s targets for the 2024/25 financial year are to have applications made within South Africa adjudicated within 4-8 weeks (Critical Skills, Business and General Work Visas) and eight months (Permanent Residence for Critical Skills, Work and Business).

With goals this ambitious (both relating to the backlog and new applications), certain collateral damage was perhaps to be expected – although not unavoidable. This comes in the form of vastly elevated numbers of errors and rejections that have no basis in law, are ignoring DHA directives or court orders, misunderstanding or not recognizing supporting documentation. The practice of splitting family applications has not been abolished and continuing to cause erroneous results. 

The high number of rejections replaces one backlog with another, as unjustly refused applicants appeal the erroneous decisions in droves. Only few officials are authorised to consider appeals, and how DHA will manage this new flood will remain to be seen. By law, an appeal must be made within 10 working days from receipt of a rejection. Already, appointments for the submission of appeals have been impossible to secure, and special concessions are having to be negotiated daily. In acknowledgement of this bottleneck, the Minister issued a directive on 20 November, which temporarily lifts the 10-day deadline and allows for appeals to be submitted until March 2025. For practical challenges, a rectification of this directive is currently being awaited.  

What about the travel directive? Can I travel home for Christmas without my application result? 

The latest travel directive will expire on 31 December 2024. It gives applicants whose visas have expired while they were awaiting outcomes of applications made before 30 June 2024, permission to leave the country without any penalties. If they are visa-exempt, they can return as tourists in 2025 and collect their result. Anyone who submitted an application after 30 June is not protected by the directive and should not leave the country for the time being.

So far, the Minister has not extended the travel directive. We are hoping he is not withholding an extension based on his expectation that the backlog will be cleared soon, as this would be unrealistic and leave hundreds (if not thousands) of applicants stuck in the country or risking a travel ban. 

We are optimistically anticipating an extension of the directive in the coming few weeks, and will alert you of this via the usual channels.

Good news for parents of South African children who are divorced/separated from their South African partners

South African immigration laws grant substantial rights to spouses (married or in a life partnership) of South African citizens or permanent residents. They can – under alleviated conditions – receive visas authorising them to work, conduct businesses, study or follow any other legal activity in South Africa. This allows them to support their South Africa partners and any children born from that partnership. However, when the marriage or partnership breaks up, their visa lapses. Up until recently, they had to return to their home countries and apply for a fresh visa from there under the very stringent “non-spousal” conditions, with no consideration of their parental ties and responsibilities. At best, this would take many months (within which a position may well be lost or a business go under), and at worst they would not qualify for any of the ordinary visas and never be able to return. 

A Constitutional Court judgment of December 2023 has changed this. These parents can now obtain visas with the right  to work or conduct a business based on their supporting their minor South African child. They can also make their new visa applications from within the country and continue working while they await the outcome. A huge win for affected children and families. The Department of Home Affairs has not yet adjusted its systems accordingly, so complications can be expected, but the ruling is technically in force already. 

Backlogs, processing times, and trends

As reported above, we are receiving large numbers of results both for long-outstanding and more recent applications. The backlog is being reduced at the same time as processing times are shortening. This is fantastic news. Aside from the high number of rejections detailed earlier, however, an enormous bottleneck has arisen elsewhere. The capacities at the Visa Facilitation Centres (VFS) who manage applications for the Department of Home Affairs, are more than exhausted. Application appointments for new applications as well as for appeals are extremely difficult to secure, and the queues for the collection of results are enormous. In some parts of the country, queuing starts at 2am in the morning, and those waiting spend entire days outside of VFS offices. We are doing everything in our power to reduce the impact of this situation on our clients.

Below are the latest averages, which should not be relied upon or taken as legal advice. Please speak to your consultant for case-specific estimates.

• Permanent Residence: Critical skills, work and business 4-12 months; all others 2-5 years
• Temporary visa applications: tourist visa extensions 1-2 months; critical skills and business visas 1-2 months; study visas 1-5 months, others 4-12+ months (improving)
• Visa applications abroad: 2-16 weeks, depending on category and location
• Appeals: temporary residence 12 months and more; permanent residence at least 6-18 months 
• Citizenship: certain processes 2-3 months, others significantly longer

While IMCOSA clients generally still benefit from our high success rate, some unfounded rejections have been received by us. 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.