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SOUTH AFRICA – Immigration Legislative Changes
April 11, 2024
By: Jonathan Fetting
On the 8th of February 2024, the Minister of the South African Department of Home Affairs released a draft in the Government Gazette containing several proposed amendments to existing immigration regulations, as promulgated under the Immigration Act. These proposed amendments were subject to public commentary until March 29, 2024; however, in a surprise turn of events on the March 28, 2024, the Department, seemingly without any regard for public comments, promulgated the final amendments to the regulations in the Government Gazette and the changes became effective immediately. It did not make any changes to the draft regulations it had previously proposed, and it has been widely criticized for its apparent failure to allow for meaningful public participation and consider public comments.
The legislative changes in detail
As previously reported, the amendments codify certain changes already implemented by the Department, either through Ministerial directives or in response to Constitutional Court judgments that found certain sections of the Immigration Act and Regulations unconstitutional, including enabling spouses, children, and parents of South African citizens and permanent residents to change status from a Visitor’s Visa to another visa in South Africa from within South Africa, which they were previously prohibited from doing.
They amend the legal definition of a police clearance certificate and require that the document only be necessary from countries where a foreign national has lived for 12 months or more after turning 18 years old during the five years immediately preceding the visa or permanent residence application date, as opposed to all countries in which they resided for 12 months or more after turning 18.
They also omit the requirement to provide a Radiological Report, which is a report by a registered radiologist issued pursuant to a chest X-ray confirming that a foreign national has been examined and shows no signs of active pulmonary tuberculosis, in support of visa and permanent residence applications.
They introduce a new, long-awaited, remote worker visa option, which is undoubtedly a positive and appreciated development. Foreign nationals who work remotely for a foreign employer and have annual earnings amounting to no less than R1 million can apply for a long-term Visitor’s Visa to enable them to work from South Africa, which may be issued valid for up to three years. If the visa duration exceeds six months within a 12-month period, the individual must register with the South African Revenue Service (“SARS”) for tax obligations. However, if the visa duration is six months or less within a 12-month period, tax registration is not required.
Some points remain unclear
The exception from the requirement to register with the SARS when the visa duration is less than six months essentially creates an exemption that is not consistent with the provisions of the South African Income Tax Act, 1962, which is a point of concern. It also remains unclear whether having a remote worker in the country will create a permanent local establishment of their foreign employer in South Africa, and thus create a corporate tax liability, and whether an external company registration obligation, as provided for the in South African Companies Act, 2008, could be triggered. Furthermore, unfortunately, the visa option does not extend to freelance and other self-employed persons who constitute a significant portion of the remote working population, thus severely limiting the target audience of remote workers. These issues could have been effectively addressed by the Department through proper consultation with the SARS and the review and consideration of public comments submitted by various industry specialists who have stated publicly that they submitted comments on these points.
The amendments introduce ambiguous provisions for points-based criteria, to be further determined by the Minister at a future date, for the adjudication of work visa applications. This will likely complicate matters and impede the issuance of them to much-needed, skilled foreign resources.
Finally, the amendments restrict the validity of certain temporary residence visas issued to foreign nationals to 12 months in instances where they are required by law to register with a statutory professional body, council, or board and have applied but have not yet been registered. This will help ensure that foreign nationals ultimately acquire the necessary registration for their professions. Unfortunately, the Department has applied the same restrictions to applications for permanent residence permits which are not issued with limited validity; therefore, the amendments in this regard do not make sense. Again, this could have been detected and effectively addressed by the Department had it properly considered public comments.
Newland Chase Insight
The Department has not released any statement explaining or defending why it failed to consider public comment and it is yet to be seen whether it will take any action to address the widespread concern in this regard.
This immigration update is for informational purposes only and is not a substitute for legal or scenario-specific advice. Furthermore, it is important to note that immigration announcements are subject to sudden and unexpected changes. Readers are encouraged to reach out to Newland Chase for any case or company-specific assessments.
