South African Immigration Summary – Update

Since our last new immigration law update there has been some clarification on certain issues.

Rather than cause confusion we have therefore amended our last communication with you in this regards, so although you will some duplication, you do have one document which you may refer to.

We taker this chance to also remind you of the new terminology so as to avoid any confusion:

• A Visa is a temporary visa and includes short term stays
• A Permit is permanent residency

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.

This will be a great aid for corporates but it should be noted that no extensions are to be permitted. 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.

Retired Visa

This visa is evaluated around a person’s ability to financially support themselves in SA by proving a certain amount of guaranteed income or lump sum of money.

The financial criteria has now been announced and applicants will need to show ZAR 37,000 per month of guaranteed income.

Retired Visa – this will be issued for up to 4 years and can be obtained by proof of the ZAR 37,000 per month or an equivalent cash sum. The equivalent cash sum will be ZAR 1,776,000 (being 48 (months) x ZAR 37,000). Note that for a retired visa you may have an accompanying spouse.

Retired Permit – this be issued by submitting proof of a guaranteed monthly income of ZAR 37,000. Note there is no cash equivalent and those who wish to obtain permanent residency on their wealth and not income will need to look to the Financially Independent Permit.

Spouses and Dependent Children

One of the biggest issues, under the previous act for various visas, was the lack of an accompanying spouse option. 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 :

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

This a great added bonus from DHA especially where the option didn’t exist in the past.

Study Visas

The new rules may see significant impact on some learning institutions, as 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. There are also very strict guidelines for the principal / registrar to adhere to including:

Providing proof of registration of the student within 60 days of registration and if a student fails to register: provide proof of failure to register within 7 days of the closing date of registration.
Notifying the DHA within 30 days of de-registration of a student and within 30 days of completion of their studies.

These learning institutions now need to ensure that their systems, or those of their appointed immigration company, are robust enough to comply as failure to do so will have serious consequences and in worse case scenarios students illegally in SA facing bans from the country,

Students at college and universities are still permitted to work part time for 20 hours per week.

Business Visa

There is still some ambiguity regarding applications for a business visa. We still await the publication of the amount that will be required to invested into the business (the old act required 2.5 million to be invested), We also still await the list of what is considered a desirable (and in the interests of the South African economy) or undesirable business activity. This list is also yet to be shared with the wider audience!

Other 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.
• 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 business they are investing into for the previous financial year,

Business visas will be issued for a maximum of 3 years at a time.

Work Visas

Work visas see the removal of two categories, the “quota” work permit and the “exceptional skills” work permit. The 2 permits have been ‘amalgamated’ and create 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

Applications for general work visas will require:

• A 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 residency holder to fill the position. If enforced we anticipate a longer processing time will occur due to the added step in the already long process, and
• Applications must be able to prove the applicant has the necessary skills and qualifications in line with the job offer; and
• That the benefits offered are not inferior to the average salary of a South African citizen or permanent resident holding similar positions; and
• SAQA is submitted – South African Qualifications Authority (a certificate that forms part of the application)

The employer will need:

• To provide a contract of employment that is in line with labour standards and is made conditional upon the work visa being granted.
• To show proof of their businesses registration
• To sign undertakings to 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 have now received the critical skill list and are impressed with the occupations contained on it. The highlights of this new work visa include:

• No job offer is required to apply.
• It allows the holder to enter and stay in South Africa for 12 months to secure a position.
• It is based on a well researched list of occupations that are badly needed in South Africa, helping foreign employees and employers.
• No restrictions in terms of the numbers in each listed occupation.
• No Department of Labour recommendation, so quicker turnaround times.
• Deals with the professional bodies specific to the occupation.
• Can be a pathway to permanent residency immediately as well an immediate 5 year working visa.
• Qualification for a critical skills visa if you qualified as a Doctoral graduate (PhD) in South Africa.
• Freedom to move between employers.
• Less obligation on employers.

As above the application will have to be supported by a confirmation from a suitable body that the applicant has the required skills and / or qualifications along with appropriate experience. We are currently researching all professional bodies so we make these applications on clients behalf.

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. A person already in SA on an ICT visa will be allowed to extend their visa to maximize the 4-year validity option. No further applications for extensions beyond this 4-year period can be made.

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.

Corporate Visa

Corporate visas can be applied for by any business that is not listed as undesirable (we do not have the undesirable list as yet as it is not published currently). 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!

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.

Permanent residency applications can be made after 5 years proof of cohabitation can be shown.

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 and Intra Company Transfer Visa)
• Critical skills applicants who have already 5 years work experience
• 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 travelling with children

The new regulation means that where the child (defined as being under 18) is travelling, accountability for the natural parents of the child is required. The unabridged birth certificate is needed in all international travel to South Africa to illustrate that the child is travelling with his/her natural parents.

Where the minor child is not accompanied by both parents, the parent travelling with the child needs to present the child’s passport, unabridged birth certificate and letter of permission from the absent parent.

Due to the absolute chaos the lack of notice this new regulation caused (1 days notice as per norm), this has now been reviewed with an implementation date of 1st October.

Undesirable persons – “foreigners who over stay the validity of their visa”

Much harsher treatment will be handed out to those who overstay their visa and can result 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. Expect to see some court cases challenging this very soon. 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.

Further Help…

There are other changes that may affect your personal situation and as with any new regulations there can be much confusion so please do not hesitate to contact us by calling +27 (0) 21 424 2460, emailing us or even requesting a call back.