Immigration to South Africa – Update Summary November 2014

Immigration to South Africa - Update Summary November 2014
Immigration to South Africa – Update Summary November 2014

We last issued an immigration to South Africa update in June 2014, close after the new immigration rules were put into effect.

As always when regulations are implemented there is a period of time required for them to be ‘bedded in’ and as such we feel it appropriate 4 months later to issue an update to the Immigration to South Africa regulations.

Terminology

Please remember that the terminology for immigration to South Africa altered with the new regulations:

  • A Visa is a temporary visa and includes short term stays.
  • A Permit is permanent residency.
  • All applications processed before the new regulations would mean you held a permit. Do not mistake this for permanent residency, a permit was previously temporary residency as well as permanent.

Immigration to South Africa – visa and permit options effected

Section 11(2) – Visitors Visa with authorization to work

Commonly referred to as a business visa, holders of a section 11 (2) are now permitted to work. This applied to those who are employed by a company abroad and have a need to work in South Africa for a maximum period of 90 days.

The recent new Directive 6 is also pertinent to the new changes, as the process has also changed now.

Non Visa Exempt Citizens will no longer have to apply for an authorization letter from the DHA head office in Pretoria and then apply in their home country for a business visa. They will now instead be allowed to go directly to the SA Embassy/High Commission/Consulate or VFS offices in certain countries and apply for the visa in one step (must be applied for in home country or country of residence) which will save time for the applicant. Not all overseas embassies are up to speed with this change but they are getting on board.

Visa exempt citizens will also no longer apply for an authorization letter from SA and will now have to apply for the letter also from the SA Embassy/High Commission/Consulate (as above) from their home country or country of residence.

Retiring to South Africa

For those seeking immigration to South Africa for the purposes of retirement, temporary residency applications are made for a retirement visa and for permanent stays for a retirement permit.

In both cases the qualification criteria focuses focuses on a person’s ability to financially support themselves in South Africa by proving a certain amount of guaranteed income. In the case of an application for a temporary retired visa this monthly income can be substituted by capital.

Retired Visa for temporary residency

  • Provides successful applicants with up to 4 years residency in South Africa.
  • Financial proof can be either ZAR 37,000 per month or the cash equivalent being ZAR 1,776,000 (48 (months) x ZAR 37,000).
  • Note that for a retired visa you may have an accompanying spouse or dependent child.

Retired Permit for permanent residency

  • Provides successful applicants with permanent residency in South Africa.
  • Financial proof must be ZAR 37,000 per month.
  • Those seeking permanent residency on the basis of capital will need to look at the Independent Financial Persons permit (details below).
  • While dependents may be attached to a visa application, they cannot be attached to a permit application.

Immigration to South Africa as a spouse / partner or dependent Child of a visa holder

As we stated at the time an improvement in the new regulations was the ability to now have an accompanying spouse, partner or dependent child. As an example in the retired visa category this meant that both spouses were required to meet the financial qualifying rules. This will no longer be the case and spouses will now be permitted to immigrate to South Africa on an accompanying basis.

Other categories of visas including the list below now also allow accompanying spouses and dependent children to accompany the main applicant into SA :

  • Visitors
  • Study
  • Treaty
  • Business
  • Medical
  • Relative
  • Work
  • Retired
  • Exchange visas

Study Visas

For foreign students in South Africa the rules remain much the same:

  • Meet the good character and health requirements
  • Get acceptance from an appropriate learning institution
  • Provide proof of medical aid from appropriate insurer.

More so learning institutions need to understand the implications of the rules as new responsibilities are now placed on them. A failure to put in place robust systems then adhere to their new responsibilities could have serious consequences for heads and admissions staff.

What remains a gray area is the impact on some learning institutions. The regulations stipulate study visas will now only be granted for learning institutions that are established under the Department of Higher Education and Learning. For example – primary, secondary schools, colleges and universities.

Despite several attempts to get written clarification on this (for example those learning institutions with foreign students that are not registered under the Department of Higher Education and Learning we are still to see something formal.

Immigration to South Africa on a Business visa or permit

Much of the ambiguity regarding applications for a business visa / permit has been cleared up.

Requirements include:

  • The business visa holder must submit proof within 12 months of being granted the visa that 60% of their total staff compliment are South African citizens or permanent residency holders.
  • A letter of recommendation will be required from the DTI with all applications regarding the feasibility of the planned business and national interest of the business itself.
  • Undertakings required from the applicant will include registration with SARS, UIF, COIDA, CIPC and if applicable any relevant professional body.
  • If the applicant is investing in an existing business they will also be required to submit financial statements of the preceding year for the business they are investing into.
  • The minimum investment is ZAR 5 million.
  • The planned business may not be within an industry classified as an undesirable sector, as published in the relevant Gazette.

Work Visas

As most holders should now be aware the new regulations saw the removal of two work, the “quota” work permit and the “exceptional skills” work permit. The 2 permits have been ‘amalgamated’ and created the addition of a new work visa category – the “Critical Skills” work visa – see below for more details on this and other work visas.

No matter the work visa being applied for. there is now a little more onus on the employer as they must sign an undertaking for all repatriation costs as well as ensuring that the employee has a valid passport at all times and has proper physical records of this.

General Work Visa

  • This visa will be issued for a maximum of up to 5 years
  • The Certificate from the Department of Labour, confirming that despite a diligent search the prospective employer has been unable to find a suitable South African or permanent residence holder to fill the position, has proven to be a source of frustration. As anticipated this has equated to longer processing times and applicants now need to be planing there application many months in advance.
  • Applications must be able to prove the applicant has the necessary skills and qualifications in line with the job offer.
  • That the benefits offered are not inferior to the average salary of a South African citizen or permanent resident holding similar positions
    SAQA is submitted – South African Qualifications Authority (a certificate that forms part of the application)

Further evidence is required from the employer:

  • that the employment offered is in line with labour standards and is made conditional upon the work visa being granted.
  • That their businesses is registered.
  • That they will inform the DHA if the employee does not comply with the conditions of the work visa and to inform the DHA if the employee changes roles within the business or type of employment.

Critical Skills Visa

We can confirm the following

  • No job offer is required in order to apply for a critical skills visa and it allows the holder to enter and stay in South Africa for 12 months to secure a position.
  • Whilst there is no Department of Labour recommendation required which leads to a faster turnaround, it does require that the individual is registered with the appropriate professional body. Many professional bodies were simply not geared up for this new role given to them time and this has seen some delays. Happily there has been great improvement from many but a minority of them still hold up the process.

Intra Company Transfer Visa

This visa has always been issued for a period of 2 years and this has been extended to a maximum of 4 years under the new Act.

There has been an apparent tightening of the definition of what constitutes an affiliate relationship, which allows individuals to transfer between 2 entities. Where an affiliate relationship exists, an Intra company transfer visa may be applied for where the affiliate relationship can be defined by a shareholding interest between the two companies. The branch and subsidiary of overseas companies also based within SA will still allow the ICT option to take place under this visa option as before.

The employer’s obligations will include:

  • Ensuring that the employee is only employed in the specific position for which the work visa has been issued.
  • Notifying the DHA of any changes to the employee’s status.
  • Ensuring that a plan is developed for the transfer of skills to a South African or Permanent Resident.

The main source of frustration with the Intra-company visa has been the lack of consistent approach from various missions around the world in how they apply the 4 year period of time to existing ICT holders.

This has now been clarified with a recent gazette and current 2 year holders of intra company work visas may now apply for further period of up to 4 years. Please note however such applications must be made in the applicants home country.
Corporate Visa

Corporate visas can be applied for by any business that is not listed as undesirable. Applicants will need to demonstrate:

  • Proof that they need to employ the requested number of foreigners
  • Be able to get a certificate from the Department of Labour confirming that despite a diligent search they were unable to find suitable citizens to fulfill the roles.
  • That the proposed remuneration package shall not be inferior to the average salary of South Africa citizens or Permanent residency holders occupying similar positions.
  • An undertaking to inform DHA of any changes and to cover employee repatriation costs if this becomes necessary
  • That 60% of total staff are South African citizens or permanent residents at any time before and after the application.

There are also a number of obligations that the employer needs to be able to meet:

  • Foreign employees passports are valid at all times
  • That the foreigner only conducts work in a position that the visa was issued for
  • That the foreigner departs South Africa upon completion of his contract
  • They immediately inform the DHA if the foreigner is not compliant with the immigration and visa rules

Individual Corporate Work Visas now require some extra documentation including SAQA, certificate of registration with professional body (if applicable).

N.B – A corporate worker may no longer renew their permit or apply for a change of status whilst in South Africa!

Due to the stringent requirements in a great many cases employers will now see that the corporate work permit is no longer their best option.
Life Partner Visas

It is now a requirement that the relationship between a SA Citizen or PR holder and a foreign partner must have existed for 2 years before an application for this visa may be made; and interviews with the both the applicants will be conducted individually and at the same time. Note that proof that the relationship still exists after 2 years is also required.

Furthermore, in some instances again frustration arises from the various missions interpreting the regulations in different ways. In particular with respect to the financial requirements with some demanding proof of ZAR8500 per month as a means of visible financial support. This of course can be hard to prove for those returning from abroad and who have yet to find employment. Of course one also has to question the constitutional and human rights aspects of this as it could very well lead to a scenario where a South African could not return home and / or be parted from their partners.

Permanent residence applications can be made after 5 years proof of cohabitation and shared financial responsibilities can be shown.

Spousal Visa’s

There was much written in some quarters of the need for spouses to also prove two years cohabitation, which if enforced could well have been seen as once again anti-constitutional and against human rights. We are pleased to say, as the legislation supports this would not be a necessary requirement, we have not as yet seen this requirement erroneously implemented by any of the missions.

Who can apply for permanent residence?

The below is a quick overview of various options that allow an individual to apply for PR.

  • Spouses of SA Citizens or PR holders in SA who have been together for 5 years
  • Holder of work visa for 5 years (excluding that of a corporate work visa)
  • Children of SA Citizens or PR holders
  • Parents of SA Citizens or PR holders
  • Applicants who received a permanent offer of employment under the condition that the applicant will remain employed in the field for a period of 5 years and submits an original advert, confirmation from DOL and falls within yearly limits (not published yet)
  • Critical Skills applicant who can show proof of post-qualification experience of 5 years, testimonials from previous employers and CV and a letter of motivation
  • Business Visa applicants (Own business)
  • Retired applicants depending on financial eligibility rules

Other Major Points to Note

The DHA imposed new regulations for those traveling with children

This has been again delayed now until June of next year (2015) but we encourage all parents to ensure applications are made for unbridged birth certificates in ample time to ensure compliance it if it indeed implemented.
Undesirable persons – “foreigners who over stay the validity of their visa”

Much harsher treatment is and will continue be handed out to those who overstay their visa and it is resulting in them being declared undesirable for as much as 5 years. The message here is very clear, all foreigners will need to have a valid visa in their passport or face not being allowed back in to South Africa for a time period of between 1 and 5 years.

Please note this is being imposed with no leeway and no recognition that it is the DHA themselves that have caused many of these issues.

Appeals are proving mostly successful but prevention is better than cure – remember if you travel out of South Africa without a valid visa or permit you will be declared an undesirable person.

Applying for a visa

Note that you may not enter South Africa on a visitor’s visa and apply for a change of status (for example a work visa). All first time applications for temporary residency must be applied for in the foreigners home country or country of residence.

Renewals

If you wish to renew or apply for a change of conditions to your visa, it must be submitted to Home Affairs (soon to be VFS) 60 days in advance of your existing visa expiring.

Repatriation deposits

In what can easily be judged as a bitter sweet rule, the DHA has now put in place a process for the refunding of all repatriation deposits with immediate effect. That is the sweet, the bitter is that applications can only be made in the place of submission (the country you submitted your application) unless you have had a change of status in South Africa. In effect this means where you did submit your application abroad you will need to fly back to that country and make your application – ironic as the repatriation deposit was the equivalent of an airplane ticket.

Closing date is February 2015 and if not applied for by then the deposit will be lost. It would be very interesting to see a figure published as to how much money was forfeited by applicants and retained by the DHA at this time.

Frustrations

There was always likely to be some frustrations and whilst some are being ironed out others remain:

  • The ongoing different interpretation of regulations is at times unbelievable – immigration is at the best times complex but when different missions have different rules it becomes nigh on impossible for prospective immigrants to understand why they have suffered a rejection at a particular mission when another would approve it.
  • Time delays continue in particular with a black whole of previous applications made directly to the missions under the old regulations. In this regards Intergate has an ongoing court case with the Department of Home Affairs.
  • Rejections that are with no merit – as an example a rejection for not submitting SAQA when it was clearly submitted, or no prove of professional membership when indeed there was. These basic ones are even more hard to understand than others which are not founded on the immigration act but seemingly someones own interpretation of it.

It could be worse

South Africa is not alone in the challenge of supplying an immigration operation that is effective and transparent. Of course it could do better but it could also be worse.

As always we appreciate the efforts and improvements we see and empathize with the difficult job they do, however some of these irritations are self inflicted and could easily be solved.

At Intergate we work with these irritations and do all we can to ensure that we pre-empt these issues. Our experience in dealing with over 40 missions around the world means we have experienced some of the frustrations so you don’t have to.

Contact us for more information about Immigration to South Africa

Immigration to South Africa remains a complex area and we welcome any queries you may have. Our free and no obligation immigration to South Africa consultation can be taken advantage of by using any of the below contact methods.

I would like to complete the online enquiry form
I would like to request a call back
I would like to e-mail Intergate

If you are already in South Africa feel free to come in and see us at 199 Loop Street, Second Floor, Cape Town or Block D – Second Floor, Edenburg Terraces, 348 Rivonia Boulevard, Johannesburg and chat over a coffee.