SOUTH AFRICA – Recent Amendments to Immigration Regulations Withdrawn  

April 15, 2024

By: Jonathan Fetting

As previously reported, in a surprise turn of events on March 28, 2024, the Department of Home Affairs, seemingly without any regard for public comments, promulgated final amendments to the existing Immigration 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 was widely criticized for its apparent failure to allow for meaningful public participation and consider public comments, which it had invited by March 29, 2024, when it promulgated the draft amendments on February 8, 2024.

On April 9, 2024, in a swift about-turn, the Minister of the Department convened a press conference in which he stated that he was ill-advised to promulgate the amendments to the regulations and that they would be soon withdrawn by further notice in the Government Gazette. He indicated that the Department would address certain issues with the amendments and promulgate them again in due course.

Clarifications and insights revealed

The Minister took the opportunity to provide some insights regarding the new points-based system. As previously reported, the amendments introduced ambiguous provisions for points-based criteria—to be fully determined by the Minister at a future date—for the adjudication of work visa applications. This was concerning, as it will likely complicate matters and impede the issuance of work visas to much-needed skilled foreign resources.

The Minister advised that the points-based system will only pertain to an application for General Work Visas (GWV), and it will replace the role currently played by the Department of Labour & Employment (DOLE).

At present, to obtain a GWV, the prospective employer must make a submission to the DOLE for a letter in support of the issuance of the work visa confirming that;

  • Despite a diligent search, it has been unable to find a suitable South African citizen or permanent resident with qualifications or skills and experience equivalent to those of the foreign national it wishes to employ; 
  • The foreign national has qualifications or proven skills and experience in line with the job offer;  
  • Their salary and benefits are not inferior to the average salary and benefits of South African citizens or permanent residents occupying similar positions in South Africa; and  
  • The contract of employment stipulating the conditions of employment, signed by both the employer and foreign national, is in line with South African labour standards and issued on condition of approval of the GWV.

The role of DOLE in GWV applications

Unfortunately, the DOLE’s role in the GWV application process has been far from efficient or effective, and the system has become dysfunctional, making it extremely difficult—and in many instances impossible—for employers to obtain the necessary DOLE GWV supporting letters for needed foreign resources who do not qualify for a Critical Skills Work Visa. The DOLE’s ability to meaningfully and objectively evaluate GWV submissions made by employers and consider the complex operations and needs of businesses across different industry sectors has been seriously lacking.

Removing the DOLE from the GWV application process is certainly a very positive development, however, it has yet to be seen what reasonable points-based criteria the Department is going to introduce for the issuance of a GWV and whether it has the ability to efficiently, effectively and objectively evaluate these criteria.

Trusted Employer Scheme

Finally, the Minister also took some time to explain the new Trusted Employer Scheme (TES) that has recently come into operation. In terms of the new scheme, qualifying employers who have been approved and admitted by the Department into the scheme are given a large amount of autonomy regarding determining which foreign nationals they hire and that they have the requisite qualifications, skills and experience for the role. When it comes to the issuance of work visas to foreign nationals associated with TES employers, the Department relies on the employer’s evaluation of the foreign national’s credentials and, where applicable, its objective to transfer skills to South African citizens and permanent residents and issues the work visa in good faith. The Department will then randomly audit TES employers’ records to ensure their compliance. Those failing to comply can face removal from the TES and further action by the Department.

The Minister clarified that the TES is only aimed at employers who;

  • have invested at least 100 million Rand in South Africa; 
  • employ 100 or more employees, 60% of which must be South African citizens or permanent residents,  
  • can demonstrate extensive skills transfer initiatives to transfer skills to South African citizens and permanent residents; and  
  • whose businesses operate in industry sectors which are in the national of interest of South Africa, such as (but not limited to), the energy sector and those involved in infrastructure investment.

The Broad-Based Black Economic Empowerment (B-BBEE) credentials of the employer were also a key consideration. B-BBEE is a government policy to advance economic transformation and enhance the economic participation of black people who are South African citizens in the South African economy. The success of the TES Scheme is yet to be seen.

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.