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Expat Briefing Editorial Team
24 March, 2014
The South African Government claims that proposed new immigration regulations will be an improvement on the existing rules. However, some fear that the new regulations are being rushed through with inadequate consultation, will result in a more bureaucratic immigration system than is the case at present, and will deter skilled workers and investors from applying for work and residence permits in South Africa.
The existing regulations already make the current system complex enough. At present there are “about 17” (according to the Government, suggesting that even it isn’t entirely sure!) different types of permits covering several categories of persons wishing to live and/or work in South Africa on a temporary or permanent basis.
These permits include the Business Permit, which entitles a foreigner to reside temporarily in South Africa if they invest a minimum of ZAR2.5m (USD230,000) in a new or existing business, and various categories of work permit, with which the Government attempts to carefully control immigration in an attempt to ensure that foreign workers only take positions in trades and professions where there is a particularly acute skills shortage and where it is difficult to find local workers with the requisite skills to fill the posts. In addition, there is the two-year Intra-company Transfer Work permit allowing multinationals to transfer staff from foreign branches to South Africa, the Corporate Permit which allows a corporation to employ a pre-determined number of foreign workers both skilled and unskilled.
The Study Permit allows foreign students to study in South Africa for the duration of their course and is renewably annually, and there is also the Exchange Permit for those under the age of 25 undertaking social, cultural or economic exchange programmes organised by a state or educational institution.
The Retired Persons’ Permit is pretty self-explanatory, and is issued to foreign nationals wishing to retire in South Africa, while the Relatives’ Permit is issued to an immediate family member of a South African citizen or permanent resident meeting certain financial requirements.
There are also a number of temporary stay visas lasting for periods of up to six weeks for: medical treatment; working in the entrainment industry; attending a conference; compliance with treaty conditions; maritime crew; social, economic and cultural exchange programmes; and individuals transiting South Africa en route to another country.
The new regulations seem to be a lot about semantics, and one of the principal changes is that the word “visa” replaces the word “permit” except for the permanent residence “permit”. Thus, a visitor’s permit will now be called a visitor’s visa, while a work permit will now be called a work visa and a study permit will be called a study visa.
According to Home Affairs Minister Naledi Pandor, who recently briefed reporters on the proposed changes, “this means that under the new regulations there will be a clear distinction between short-stay visas and long-stay permanent residence permits.”
However, the changes also mean that all applications for visas will have to be made at South Africa’s missions in person. Furthermore, while current regulations allow travellers on a visitor’s or a medical permit to change their status or conditions while in the country, they will in future have to make such applications from outside the country.
Under the new regulations, prospective business ventures will be assessed before a business visa is granted. “This means that a recommendation from the Department of Trade and Industry forms part of an application,” Pandor explained.
The new regulations also reduce the number of work permit categories from four – the Quota Work Permit, the General Work Permit, the Exceptional Skills Work Permit and the Intra-company Transfer Work Permits – to three. This will mean the end of the Quota Work Permit and Exceptional Skills Work Permit and the introduction of a new classification, the “Critical Skills Visa”.
After receiving complaints from the corporate sector that the two-year duration of the intra-company work permit was too short, the Government has responded by increasing this to four years in the proposed regulations.
Study permits will under the new regulations be issued for the duration of course and will not need to be renewed annually.
The rules will also be strengthened to prevent “undesirable persons” entering South Africa. “Currently, within the list of ‘undesirable persons’ there is no inclusion of ‘outstanding warrants or convictions in the country or foreign countries’ against certain persons for offences relating to human smuggling and trafficking. The new regulations address this,” Minister Pandor said.
Pandor added that convictions for human smuggling and trafficking have been included in the proposed regulations alongside genocide, terrorism, murder, torture, drug related charges, money laundering or kidnapping.
The new regulations also overhaul the system of fines dished out to those who overstay their visas. Currently, the fine is only enforced when a person applies to return to South Africa and not immediately upon detection of the over-stay. “We’ve introduced an amendment to the effect that any people, who over-stay for a particular number of days at a time, will now be listed as an undesirable person,” Pandor confirmed.
Pandor claims that the new regulations “will usher in a new era of secure, efficient and sound management of international migration.”
However, critics of the proposed regulations, such as Global Migration SA, which provides immigration services for people migrating into and out of South Africa, say that the new system will make acquisition of scarce skills more cumbersome and suppress investment.
“The Draft Immigration Regulations… are likely to impede the economic growth of the country by creating massive inconvenience for investors and applicants, which may lead to the loss of new investment and much needed foreign skills,” the company warns.
“The regulations propose a new level of bureaucracy,” the company adds. “The process which applicants will have to go through to obtain a certificate from the Department of Labour for a General Work permit indicating that they have complied with a whole list of requirements, is likely to be too long and drawn out for most investors.”
Global Migration also has worries over the Government’s apparent hastiness in implementing the new rules. After publishing the updated regulations on February 14, the Government allowed a period of just two weeks for the public to comment on the proposals. This was later extended by three weeks to March 7. However, this leaves precious little time for the Government to take on board any concerns and make any necessary changes to the draft regulations before they are implemented on April 1, 2014.
“There are serious concerns over the capacity of [the Department of] Labour to implement an efficient process,” the firm says.
The company sees further issues with Corporate Permit applications and spousal permits under the new regulations.
“The Corporate Permit application process, which has been problematic since the Department of Labour unlawfully imposed requirements outside of the current legal framework, will be worsened by the fact that only two sectors, Mining and Construction, have specific requirements. The requirements for the other sectors have simply been omitted”.
“The Draft Regulations perpetuate the incorrect interpretation of the legislation with respect to spouses by requiring these applicants to apply for relative’s permits, which are only intended for applicants who are blood relatives. There are no requirements for spouses accompanying SA Citizens and Permanent Residents, which is a serious omission and creates uncertainty as to how an application is to be lodged without requirements”.
“A glaring error is that a spousal permit for a foreign spouse can only be applied for once the couple can prove a relationship for five years, which goes against longstanding Constitutional Court rulings with respect to this category of persons”.
Another omission on the part of the Government is its decision, intended or otherwise, not to publish a new list of scarce skills for public comment, leaving many businesses guessing as to what the new list will contain.
Furthermore, no transitional provisions have been included alongside the new regulations for people who are on one type of permit under current law and may need to apply for an extension of their stay in SA, assuming a legitimate purpose. “If there is no continuity with respect to existing skilled personnel, companies will be prejudiced, as will the applicants and the SA citizens who benefit from the value added by skilled personnel and investment in South Africa,” Global Migration said.
Pastor suggested in her news briefing that the new regulations are intended to bring more clarity to South Africa’s immigration regime. On the evidence of the above however, that seems a very unlikely outcome. Indeed, it is being said that if the Government insists on ramming these changes through, it could actually be damaging for the South African economy.
Global Migration certainly holds the latter view, and has this warning for the Government: “A mining company executive indicated that this development, together with the uncertainty around critical policy areas, still makes South Africa unattractive as an investment destination. South Africa’s position as an investment destination will probably fall further behind comparative opportunities in Africa.”
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