The below information is supplied by Intergate Immigration.
On Friday the 23rd May 2014 we received the new Immigration laws, with an implementation date of Monday the 26th May 2014.
We at Intergate have taken a few days to really digest the information from the new Act and in doing so have now been able to provide the summary below in what we see as crucial to all foreigners in SA who reside here on any form of temporary residence.
Most of the industry and people who this new Act affects are extremely perturbed and frustrated at this complete lack of notice. There is no doubt that there will be a period of time before the full scope of the changes are both realized and in some cases even implemented.
As experience has proven, what is sometimes written is not what is always implemented. Different missions have historically “interpreted” the rules in a very different manner. So while the below will provide you with a summary of the new rules, please take into account some aspects will still have to be seen in real life situations over the coming days and weeks as to how they truly evolve.
The first example in terms of confusion which surrounds the new Act is the lack of consistency and understanding of the law!
The new law states that 3rd parties are no longer allowed to submit applications on behalf of someone else even if they hold power of attorney, yet this has still been possible for the past 2 days since the law was introduced. The new Immigration Act clearly states all applicants must present themselves upon submission of any applications to conduct the new biometrics that are now required, namely a photograph being taken and finger prints being recorded by a Home Affairs Official. Clearly Home Affairs has not followed the new law as it stands from day one, which is of great concern to us. There are already rumors of when the Act will be implemented by Home Affairs but the fact remains the law changes have been passed on paper at least!
Below we summarize some of the changes to the various visa categories.
New immigration rules “ The Highlights”
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 South African business/company for a maximum period of 90 days.
This will be a great aid for Corporates but it should be noted that no extensions are permitted. The recent new Directive 6 is also pertinent to the new changes, as the application process has also now changed as follows:
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/VFS offices in either their home country or country of residence and apply for the visa in one step. This will save time for the applicant. Not all overseas embassies are up to speed with this change but they are slowly 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/VFS offices in either their home country or country of residence.
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. Today, we still await confirmation of the required financial amounts from DHA.
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 and Exchange visas – this a great added bonus from DHA especially where the option didn’t exist in the past.
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. 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 Colleges or Universities are still permitted to work part time for 20 hours per week.
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 ZAR2.5 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 Residence holders.
- A letter of recommendation will be required from the DTI with all applications, outlining the feasibility and the interest to South Africa 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 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. Proper physical records must be maintained at all times.
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 Residence 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
- A SAQA (South African Qualifications Authority) certificate is obtained and submitted – evaluation of foreign education according to South African standards.
The employer will need to:
- provide a contract of employment that is in line with labour standards and commencement of employment is made conditional upon the work visa being granted;
- show proof of their businesses registration; and
- sign undertakings committing to inform Home Affairs if the employee does not comply with the conditions of the work visa or if the employee changes roles or type of employment within the business.
Critical Skills Visa
In order to apply for this new option you need to be on the (yet to be published) Critical Skills list of job titles. The Critical Skills Visa will be valid for a period of up to 5 years. Permanent residence can also be applied if you qualify for this visa – see Permanent Residence section for further information!
The application will have to be supported by a confirmation from a suitable professional body that the applicant possesses the required skills and / or qualifications along with appropriate experience.
Intra Company Transfer Visa
Under the old Act, this visa had been issued for a period of up to 2 years. 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 extension beyond this 4-year period can be made.
ICT Visa’s were possible to achieve where the relationship between the foreign and South African entities existed as either a branch, subsidiary or an affiliate relationship. There has been an apparent tightening of the definition of what constitutes an affiliate relationship – it is now defined by existence of a shareholding interest between the two companies. The branch and subsidiary relationship between entities will still allow the ICT option to take place 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; and
- ensuring that a plan is developed for the transfer of skills to a South African or Permanent Resident.
Corporate visas can be applied for by any business that is not listed as undesirable (we similarly await the publication of this list by DHA).
Businesses 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 fill the roles;
- the proposed remuneration package shall not be inferior to the average salary of South African Citizens or Permanent Residence holders occupying similar positions;
- Proof of registrations with SARS, UIF, COIDA, CIPC;
- an undertaking to inform DHA of any changes and to cover employee repatriation costs if this becomes necessary; and
- that 60% of total staff are South African Citizens or Permanent Residents at any time before and after the application.
Once the Corporate Visa Employees have been recruited, employed and obtained their Corporate Worker Visa, there are also a number of obligations that the employer needs to be able to meet:
- Foreign employees passports are kept 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; and
- 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 (mandatory) and a certificate of registration with professional body (where 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 South African Citizen or Permanent Residence holder and a Foreign partner must have existed for 2 years before an application for this visa may be made. Interviews with both the applicant and the South African will be conducted individually and at the same time.
Two years after being issued the Life Partner Visa, a visit to DHA is required in order to prove that the relationship still exists and maintain the validity of the permit granted.
There is some confusion with the interpretation of this part of the new Act whereby it appears that a Life Partner can also apply for Permanent Residence at the same time as applying for Temporary Residence if they meet the 2 year criteria. However when referring back to the original immigration Act of 2002 and the lack of change in the 2011 Amendment Act we are of the belief that permanent residence can only be applied for after 5 years.
Please be very careful if applying for Permanent Residence before you have proof of 5 years. Applications may be taken in by the Department of Home Affairs and then being rejected 1-2 years later based on current processing times within South Africa.
Temporary Residency – This has not changed and can be applied for if a foreign national is married to a SA Citizen or a SA Permanent Resident holder as before.
Permanent Residency – 5 years of marriage is still required in order to apply for this option. Please note there has been confusion surrounding the amount of years that you need to be married here but this stays as 5 years and not 2 as some information states online and in the press.
Who can apply for Permanent Residence?
The below is a quick overview of various options that allow an individual to apply for Permanent Residence.
- Spouses of South African Citizens or Permanent Residents in SA who have been together for 5 years;
- Holder of work visa for 5 years (strictly section 19 Work Visas and excluding that of a Corporate Worker visa);
- Children of South African Citizens or Permanent Residents;
- Parents of South African Citizens or Permanent Residents;
- 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 (the list is not published yet);
- Critical Skills applicant who can show proof of post-qualification experience of 5 years, testimonials from previous employers, a CV and a letter of motivation;
- Business Visa applicants (own business); and
- Retired applicants depending on financial eligibility rules (financial values also yet to be published).
Other Major Points to Note
Given our clients experiences this week, the Airports have been briefed this morning and are implementing the new legislation. So what does this mean for your employees –
If someone has a pending application and the previous visa/permit has lapsed while in process of waiting, the employee if wanting to travel out of SA will be asked to sign a form confirming they are undesirable and will be added to the v-list and not permitted back to SA for a prescribed number of years.
Your employees must remain in SA for the outcome of their application or travel within the validity of an existing permit. Travel with a pending application and an expired visa is no longer an option.
Undesirable Persons – “foreigners who over stay the validity of their visa”
Harsher treatment will be handed out to those who overstay their visa and can result in them being declared undesirable for as many 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 ranging from 1 to 5 years.
The simple message here is do not fall into this category – if you are concerned contact Intergate ASAP for a review of your situation and clarity.
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 residence must be applied for in the foreigners home country or country of residence.
Exception is made for the Accompanying Spouse or Accompanying Minor’s who are on long term visitor visas while accompanying a Business Visa or Work Visa holder. In the event they want to change to taking up their own employment or to start school, application in South Africa for a change of status may be allowed.
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) not later than 60 days in advance of your existing visa expiring.
There are other changes that may affect your personal situation; and as with any new regulations there can be great confusion! So, please do not hesitate to contact us on firstname.lastname@example.org or by calling +27 (0) 21 424 2460.