Changes in South African Immigration Law

IMPORTANT INFORMATION RELATING TO CHANGES IN IMMIGRATION LAW

As you will be aware the Department of Home Affairs (DHA) is in the process of reviewing its rules and regulations and part of this is around the issuing of temporary residence permits as well as business and exceptional skills permits in particular – both temporary and permanent applications.

We last night received a copy of the latest proposed amendments. These changes might well effect you so please ensure you read the below and if you have been so already, contact your Intergate sales manager to urgently discuss your situation.

The Department continues to be exposed as dysfunctional and this week was forced to admit the loss of several hundred applications following a court case from another immigration company as well as unacceptable back logs. The proposed changes to the immigration act have been through public discussion and in the main feedback from industry experts has not been taken into account.

It would seem they are on a set path and determined to follow through with it no matter the consequences. We want to ensure all our clients are kept up to date with developments and do not wish to ‘sit back and see’ when it will be to late to do anything.

Changes to Business permits Whilst we must inform you that these changes are not yet signed into law there is every chance they will be. Past history has shown that when changes to immigration rules are put into effect it is done so immediately with absolutely no prior warning or grace period. In short this means that whilst you may before (currently) have met the criteria you may no longer when the new laws are passed.

The two main changes being proposed are as follows:

The employment criteria will state that South African citizens or permanent residency holders must make up 80% of your work force. This will possibly have little effect as this tends to be the case anyway.

That no business visa (the name is being changed from permit) will be issued or renewed for any business listed as being in an undesirable by the minister. We have not received any communication stating what business sectors will be considered undesirable. In short we do not know at this stage what the minister considers to be undesirable and it could be the industry sector that you wish to set up a business in. This could have a profound effect on your application and was included I the latest release of the proposed changes yesterday.

Changes to Exceptional Skills permits

Whilst we must inform you that these changes are not yet signed into law there is every chance they will be. Past history has shown that when changes to immigration rules are put into effect it is done so immediately with absolutely no prior warning or grace period. In short this means that whilst you may before (currently) have met the criteria you may no longer when the new laws are passed.

The main change being proposed is as follows:

Exceptional Skills Permits will not exist any more and will be replaced with a critical skills permit. As ridiculous as it seems we have no indication of what a critical skill will look like and the only correspondence regarding this is that the mister will publish a gazette – who knows when! In short, due to the DHA’s lack of any guidance, we do not know at this stage what the minister considers to be critical. This could have a profound effect on your application and was included in the latest release of the proposed changes yesterday.

Summary and our recommendation

As always the final decision rests with the DHA as to the issuing or not of a permit, there is little doubt that the new regulations, that are being pushed through, are going to add to the existing turmoil and potentially put off much needed skills and investment into South Africa. There is also little doubt that the court cases (of which we are a participant) will rage on. We recommend all potential business and exceptional skills permit applicants to immediately start the process regarding their application. Your business or exceptional skills, which might currently qualify, might no longer qualify in the near future. It could also be that your business idea or exceptional skills is not at all affected by the new changes. However, it is advisable to be proactive and to submit applications rather sooner than later than take a “wait and sit” position. The criticism of the the DHA and the new regulations is widespread and international, and whilst the government continues to speak of promoting foreign investment and business relationships the DHA it seems is doing the exact opposite with unclear, ill thought through and damaging decisions. We will continue to make our voice heard at every level we can to support our clients and future prospective immigrants to South Africa and we look forward to your continued support during these uncertain times.