The new laws and regulations governing those entering the
country have not changed the entire South Africa immigration landscape, however
in their execution by the Department of Home Affairs, they have caused
confusion and sometimes havoc for both private person and the business sector
alike.
Here is a list of all the new South African immigration
regulations, as signed into the government gazette less than one month ago and
formally in effect since the 26th of May 2014.
Before delving into the list and the changes at length, bear
in mind the following:
Law and timelines: The Immigration Act, 13 of 2002 was
amended by the Immigration Amendment Act, 13 of 2011. Finally, three years
later, the Amendment Act (with its regulations) was promulgated on 22 May 2014,
being published in the Government Gazette. The revised Immigration Regulations
(the “Regulations”) also came into effect on 26 May 2014.
The laws are now better: While some of those reading this
will argue this is not the case, and while improvements are always there to be
made, the new laws and regulations are far improved in most aspects, especially
when compared to global standards. It is the execution of these laws which is
causing most of the stark issues and challenges faced by many immigrants
currently.
Intentions of Home Affairs:
The changes are not meant to
hinder anyone except those who are undesirable (the legal word used for those
not wanted in the Republic) and those trying to “play” with the immigration
system. For example, people would enter SA on a visitor’s visa and quickly find
a willing South African to be their “life partner”, thereby qualifying for a
type of Relative’s Permit (permits now referred to as visas, with the exception
of the Permanent Residence Permit). Immigration practitioners, as well, were
well-known for charging fees without correctly providing services or providing
them at all (even though some practitioners were in fact above board).
Tightening of the rules: Home Affairs is also clear in that
they wish to make things much more difficult for those who are not wanted in
SA. Previously the word on the street was: “Anyone can immigrate to SA” – that
is definitely no longer the case.
Legal effect: The laws and regulations are in full force
(some exceptions are mentioned below) and therefore private people and
companies must make sure they are well-versed in the new setup so as to avoid
often drastic inconveniences and even banning form the Republic of South
Africa. Human Resources professionals especially must be aware of both the ways
that employees could be in contravention of the news laws or regulations, as
well as the new opportunities offered in employing foreign
skills.
.
The point to reiterate is that while the laws are an
improvement overall, the execution and timing could almost not have been worse.
Any regulations signed in parliament and then effective only two working days
later, allows no-one the chance to try and comply, and many unsuspecting people
have fallen victim to horrible situations whereby they are now banned from
South Africa, forced to leave jobs and houses and even spouses and children
behind.
The new Minister of Home Affairs, Malusi Gigaba, was sworn in only two
days after his predecessor, Naledi Pandor, signed the new regulations into
effect. These methods of implementation are the main cause for the cries of
“unconstitutionality” and large-scale disappointment from various immigration
lawyers across the country, including Immigration South Africa
Without further ado then, here is the full list of new South
Africa immigration regulations and law changes. Any that seems to be missed out
can be sent to us on info@immigrationsouthafrica.org and we will attempt to
verify and include them.
TERMINOLOGY
All permits are now called visas with the exception of the
Permanent Residence Permit.
Also, the word spouse is now meant to encompass all types of
permanent relationships, whether they be marriages, life partnerships and so
on.
For a full list of terminology read the first few pages of
the new regulations – you can download them at the bottom of this article.
APPLYING FOR A VISA OR PERMIT
Applications to be made only through VFS in South Africa: No
more applications will be made for visas and permits at a Department of Home
Affairs office or embassy, at least not within our borders. While in Pretoria
the last application under the old regulations was accepted on Friday, 30 May,
Durban, Bloemfontein and George will still accept applications under the old
regulations until 6 June, Johannesburg until 18 June, Cape Town on 20 June and
Port Elizabeth, Nelspruit and Polokwane until 23 June. Most of the embassies
abroad will still accept applications until 18 June.
Thereafter only the new regulations will apply and most of
the applications will have to be submitted at the South African embassies and
consulates abroad, while the meagre rest will have to be submitted to your
local (SA) Visa Facilitation Services (VFS) center by appointment only. VFS is
a global visa application facilitation company. Their fees are higher than Home
Affairs and they will charge you R1,350 on top of the usual Home Affairs
application fee, a benefit that solely goes to the shareholders of the private
operating company. The tender for this was questioned in the media and dodged
by the current Minister of Home Affairs, Malusi Gigaba.
BEING REPRESENTED BY AN IMMIGRATION SERVICE
The section regarding immigration application representative
and power of attorney has been repealed – no-one is allowed to apply on anyone
else’s behalf – meaning that the applicant must always be present. They are
allowed a “skilled companion” to accompany them, however, and immigration
lawyers can still accept power of attorney for most other things, just as
attorneys always have been able to. This is one of the many reasons using an
immigration lawyer is still the only way to go.
IMMIGRATION COMPLIANCE
Under the new legislation, the maximum sentences for
contraventions are significantly increased. Foreigners who overstay their visas
will automatically become ‘undesirable persons’, and therefore ineligible for
entry into, or status in or even the ability to apply for a visa to enter into,
South Africa. For an overstay of 1 to 30 days the person will be declared
undesirable for a period of 12 months, for a second overstay of 1 to 30 days
within a 24 month period the person will be declared undesirable for a period
of up to two years and for any overstay of more than 30 days the person will be
declared undesirable for a period 5 years. Multiple transgressions can also
affect the length of the prescribed ban.
TRAVELING IN AND OUT OF SOUTH AFRICA ON A VISA
Expired permits and visas: Overstayers are no longer fined,
but are declared undesirable. This is currently (June 2014) deeply
controversial as several foreigners, having applied well within the time limit
(60 days before expiry) have still not received their new visas or permits and
been banned. Previously, foreign nationals waiting for a decision on their visa
renewal – which can take months and often results in the expiry of existing
documentation – could travel using a receipt from home affairs indicating their
application was pending.
This is no longer the case and anyone traveling on an
expired permit could be declared “undesirable” and banned from returning to the
country for up to five years. For example, recently a British national, who is
married to a South African, was banned in May for 12 months for leaving South
Africa while on an expired visa. She had been waiting for the outcome of her
visa renewal application. The directive in place enforcing this is Directive 9,
and Directive 43 was the repealed directive allowing travel on application
receipts. The rumours currently are that Directive 9 will be withdrawn as there
are standing court cases at the Western Cape High Court.
Children: A requirement that each child travel with his or
her own passport. Parents traveling with children must present unabridged birth
certificates. The new regulations introduce much stricter identification
methods for traveling children in an effort to stop child trafficking by
requiring the production of unabridged birth certificates in respect of any
minor traveling to or from South Africa. South Africa is one of the only
countries in the world to have this new requirement. Where a child is
accompanied by only one parent, an affidavit of consent by the other parent must
be produced. Again, the issue with this is not necessarily the law but the
timing – almost no traveler in SA or abroad was aware of it. As a result, the
Department of Home Affairs has issued a statement that it will only enforce
this provision at the end of September 2014.
EXPIRED VISA ENTRY DENIED FOR UNDESIRABLE PERSONS
Any foreigner, who attempts to depart the country after his
or her Visa has expired will nolonger be fined, but declared “undesirable” in
terms of section 27(3) for a period of between twelve months and five years
depending on the time past since visa expiry and the number of previous
transgressions in this regard. A submitted extension application and receipt
thereof are not sufficient to prevent this measure! This practice is already in
place at the South African airports!
CHANGE OF PERMIT
Applicants, who wish to apply for another type of permit and
not for an extension will from now on have to submit their application (in
person!) in their home country and need to await their issue before they can
return. Excepted are only the family members of holders of Work and Business
Permits, if they commence work or studies. This affects especially all holders
of Tourist Visa as well as Intra-Company-Transfer Work Permits, which cannot be
extended. Extensions of existing permits will now have to be applied for 60
days before expiry (previously 30 days), otherwise the applicant must submit
his extension and await its outcome in his home country. Note: If an extension
application is not finalised prior to expiry and the applicant is still in the
country, he or she will become undesirable as per above upon departure, no
matter how long Home Affairs takes to process the application.
VISITORS VISAS
Visitors, who receive their visitor visa at the border or
port of entry, section 10, and who leave South Africa for a neighbouring
country will only get the remainder of their original visa upon re-entry. If
the visa has expired in the meantime they will not be issued with another 90
day visa, but only with a seven day visa. Visitors cannot apply for a new visa
within South Africa, and must return to their country of origin to do so.
Example: A tourist to South Africa finds work while in the Republic and must
apply for a certain Work Visa – this must be done back in their country.
Work: Visitors Visas allow work for a foreign employer for a
contract which requires the conducting of certain work activities in South
Africa, including among others: spouses and dependents of work permit holders,
teachers at international schools, entertainment industry professionals such as
film and advertisement producers, including actors, cameramen, filmmakers,
hairstylists, makeup artists, lighting and sound engineers, lecturers, foreign
journalists, as well as artists who wish to write, paint and sculpt.
STUDY VISA
Study visas will no longer be issued for language courses,
practical training or other education but only for education/studies offered by
any registered institution of higher education, college or school under the Schools
Act. The study visa can now be issued for a period of up to eight years.
RELATIVES VISAS
The main changes appear under the Spousal type of Relative
Visas, previously known as the Life Partner Permit and the Spousal Permit. The
new regulations speak of a spouse as someone in a “permanent relationship”,
whether a marriage or another type of permanent union. Shared financial
responsibility and cohabitation are still key proofs required, unless an
unabridged marriage certificate is produced.
Accompanying Life Partner and Spousal visas: The regulations
propose that the parties to a spousal relationship must have cohabited for a
period of two years before they qualify to apply for a visa or permit. The
foreign spouse of a temporary work visa holder who wants to work in South
Africa can now work for a foreign employer pursuant to a contract that partially
requires conducting of certain activities in South Africa. Spouses and life
partners must be able to prove a relationship of at least two years when
applying for a visa.
Benefits for spouses and dependents are that, for example,
accompanying family members can apply for: Temporary residence accompanying
spouse visas, accompanying parent visas and study visas. This is in addition to
spouses being able to forego the normal requirements to be able to conduct
business, work or study in the Republic.
BUSINESS VISA
Home Affairs has made the decision to increase the required
investment capital from ZAR 2.5 million to ZAR 5 million. The former
requirement of five employment positions to be created has been replaced
undertaking of 60% of the staff being permanent employed SA citizens or
permanent residents within 12 months. The respective form requiring this to be
part of the certificate of a chartered accountant is one of the many mistakes
in the new application forms and can be ignored.
Furthermore, the letter of recommendation, which was
previously required only for certain industries and in case of a lower
investment capital, will now have to accompany every application. This will
increase cost and time frame for the preparation of the application and will also
create certain unpredictability for such applications. The list of such
industries qualifying for a waiver or reduction in the investment amount for a
business visa can be downloaded from our site.
WORK VISAS:
There are now four main work visa types: a general work
visa, an intra-company visa, commonly used by multinationals to rotate
management around the world, a corporate visa, typically used to import
specialised skills for large infrastructure projects as well as unskilled
migrant labour, a critical skills visa, in which foreigners with designated
skills sets will be able to enter SA regardless of an employment offer and
visas for short-term contractors in the fields of entertainment, journalism and
film production.
Under the new regulations applicants for general work visas
will be required to obtain certification from the department of labour, stating
among other things that their salary and benefits are commensurate with those
paid to South African citizens in similar positions. The labour department
would also have to take steps to confirm that the employer is registered with
the Commission on Intellectual Property and Companies. How long this will take
to process remains to be seen.
GENERAL WORK VISA:
While it is widely appreciated that this
visa type still exists it will become even more tedious and will take much more
time to apply for than before. The new regulations now require not only a SAQA
evaluation for every applicant’s qualifications, even for those without
qualifications. The Department of Labour is now required to issue a certificate
confirming that despite a proper search, the applicant’s employer was unable to
find a South African citizen or permanent resident with qualifications and
skills or experience equivalent to those of the applicant. Such certificates in
the past took up to six months to obtain. Also, the salary and qualifications
of the applicant are taken into account, as well as checking that the
employment contract adheres to labour law standards in SA. On the positive side:
no repatriation deposits are payable anymore.
Exceptional Skills Work Permit/Visa: This permit does not
exist anymore and has been replaced by the Critical Skills Visa.
Quota Work Permit/Visa: This permit does not exist anymore
and has been replaced by the Critical Skills Visa.
Critical Skills Work Visa: This visa replaces both of the
above mentioned work permits and is based on the General Work Visa with
identical requirements, but requires in addition not only the confirmation of
the applicant’s skills by the professional body of his or industry (no matter
whether there is one or not), also proof of application for a certificate of
registration with such body. There will no repatriation fees payable anymore,
the permit can be issued for up to five years and is easily extendable subject
to what was stated above. It continues to be free of binding to an employer as
the previous Exceptional Skills Permit. The critical skills work visa list was
published on 3 June 2014 and can be downloaded here.
Intra-Company Transfer Work Visa: This may be issued to a
foreigner who is employed abroad by a business operating in the Republic in a
branch, subsidiary or affiliate relationship, and who, by reason of his
employment, is required to work in the Republic for a period not exceeding four
years. The permit is not renewable. The applicant must submit an employment
contract (from the foreign employer) that is in force for not less than six
months.
CORPORATE VISA AND INDIVIDUAL CORPORATE WORKER VISAS
Corporate visa for companies: This is a challenging visa to
apply for and is still a matter of building a case for why the company requires
the specific foreign staff instead of South Africans. The regulations include
requirements such as letters from the DTI and the Department of Labour, but
will only issued for a period of three years (previously five). Before, one
could extend the individual Corporate Worker Visas, even replace a vacated
position based on the same worker’s authorisation certificate, however this has
been abolished. It also does not count towards permanent residence. The
corporate visa has also been limited to a three year period and this is also
the limit for the individual worker.
For each employed foreigner: An authorisation certificate is
then received for each foreigner to be employed. The new regulations require
that a corporate worker may not renew a visa, or apply for a change of status
within South Africa. Applications for corporate worker permits must be
accompanied by SAQA Certificate proof of professional registration, making the
process similar to that of a general work permit application, save that the
placement of the foreigner is approved in advance.
The ability of the Department of Home Affairs to implement
tough new immigration regulations has been questioned by experts. Among them,
immigration lawyers say that the new regulations could also affect businesses
looking for workers with skills they cannot find locally and could frustrate
highly skilled foreigners seeking to live and work here lawfully.
