February 22, 2014
UPDATE ON IMMIGRATION MATTERS
New
immigration laws
UPDATE ON IMMIGRATION MATTERS
20 February 2014
Dear Clients, Friends and Partners,
After more than 3 years of nervous
anticipation, the time seems to have come for the immigration legislation to
change. On Friday, 14 February 2014, the latest draft Immigration Regulations
was published by the Department of Home Affairs (DHA), with a closing date for
public comment of 28 February 2014. Government's plan is to implement the new
rules, which include the Immigration Amendment Acts of 2007 and of 2011, on 1
April 2014. The following is a brief synopsis of the most significant changes.
For further information or an individual consultation on how the changes may
impact you or your organisation, please contact
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 in how far short-term visas for work purposes will offer an alternative.
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 in how far 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 deatails 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 visitors (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 staffs complements 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.
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 deatails 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 visitors (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 staffs complements 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:
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
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.
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.
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