SOUTH AFRICA: Revisions to Immigration Regulations

May 30, 2014

As of May 26 2014, a series of legislative revisions to South African immigration regulations have come into force under the provisions of the 2007 and 2001 Immigration Amendment Acts. While it remains uncertain how these revisions will be implemented by the Department of Home Affairs in South Africa and Consular Sections abroad, official updates are expected to follow shortly. In the meantime, however, we have highlighted and summarised some of the more notable regulatory revisions, most likely to affect business and corporate immigration to and within South Africa.

Entry

Upon arrival in South Africa, foreign nationals will now be legally required to complete a detailed arrivals form, providing information on their: purpose of seeking admission to South Africa; period of intended stay; occupation; and contact details while in South Africa. Mandatory biometric enrolment will also be gradually implemented across South African ports of entry. Specific provisions have now also been introduced, enabling Immigration Officers to refuse entry to any foreign national who intentionally provides incorrect or false information.

Documents

Passports submitted for visa endorsement must now contain a minimum of two blank pages and a validity of at least 30 days after an applicant”s proposed date of departure from South Africa. If a passport is issued by a foreign country that has standardised machine readable passports (MRP), then a foreign national must submit an MRP for endorsement.

It is now a mandatory legal requirement for foreign nationals to obtain Police Clearance Certificates (PCC) before submitting their applications. This will significantly increase the time needed to prepare application documents prior to submission for seasoned expatriates, as a PCC must be obtained from any country in which the applicant has resided for longer than 12 months, since the age of 18.

Similarly onerous, is the requirement that all documents, such as PCCs, marriage and birth certificates in support of a Permanent Residence Permit application must now be duly legalised, prior to submission.

Submitting Applications

In order to apply for a temporary residence visa from abroad, a foreign national must submit their application in person to a South African Diplomatic Mission, either in their country of origin or a country where they hold regular residence. Applicants may now also be called for interview at the request of the relevant Consular Section while their application is being processed.

Within South Africa, the Department of Home Affairs has commissioned immigration application Centres operated by VFS Global, to be opened throughout June in all 9 provinces. These Centres will allow foreign nationals in South Africa to enrol their biometric information and submit applications, Monday to Friday from 8:00 to 16:00.

Extension and change of status applications in South Africa must now be submitted at least 60 days prior to expiry of the granted visa. Furthermore, eligible foreign nationals applying to extend their any visa or permit will now need to include an affidavit attesting that they have complied with South African law and have not breached the immigration regulations during their stay.

It is worth noting in this regard, that it is also now a mandatory requirement for a foreign national in South Africa to report any change of registered address or contact details to the Department of Home Affairs within 14 days. Failure to do so will be considered a breach of the immigration regulations.

Visitor Visa: Section 11(2) Work Authorisation

While section 11(2) Work Authorisations may still be granted for Visitor Visas, companies applying for authorisation will now be required to provide information on the: purpose and nature of the work; qualification and skills required for the work; duration of the work and visit; place of work; proof of remuneration; and identity and contact details of the prospective employer or relevant host contact.

Work Visas

Three revised Work Visa categories are due to be introduced under the new regulatory revisions. However, while the regulations governing these categories is now in effect, it still remains to be seen exactly how the relevant requirements and processes will be implemented by the relevant government departments.

In any case, written undertakings will now have to be produced by any company seeking to apply for Work Visas for foreign employees. In line with the revised immigration regulations, employers will be required to assume responsibility in meeting any costs relating to the deportation of any of their foreign employees and ensuring the foreign employees” passports continue to be valid throughout their employment with the company in South Africa.

With regards to the General and Critical Skills Work Visas, which can be granted for up to 5 years and are renewable, it is worth noting that applications for Permanent Residence Permits under the revised regulations will now have to evidence that the applicant has held the relevant Work Visa for a continuous period of 5 years. A cumulative period of 5 years can no longer be accrued for the purposes of such an application.

1.General Work Visa

Formerly known as the General Work Permit, the General Work Visa, will now require a certificate from the South African Department of Labour, confirming that:  the employer has been unable to find a suitable South African citizen or permanent resident; the foreign national has the relevant  qualifications or proven skills and experience; the salary and benefits offered are not inferior to those offered to local hires in a similar role; the contract of employment complies with South African labour standards; and the employment is conditional upon the approval of the General Work Visa application.

However, significant delays and challenges are being anticipated in regards to obtaining this certificate, as the Department of Labour currently has no uniform requirements or processes in place for issuing such a certification. Further, to this there is no set period under which the Department of labour will have to issue any such certificate and there exists no legal framework for applicants to appeal any refusals. Given that a General Work Visa application is now entirely contingent on having this requisite labour certification, employers will need to account for such difficulties and may need to seek other more viable alternatives until the certification process becomes fully implemented.

2.Critical Skills Work Visa

The Critical Skills Work Visa category has replaced the former Quota and Exceptional Skills Work Permit categories, which have now been formally repealed. However, applications under this new category cannot currently be submitted as the Department of Home Affairs has yet to publish any standardised critical skills classifications.

Nevertheless, once published, a foreign employee will need to prove that their professional qualifications, skills and/or experience fall within an appropriate critical skills classification by providing: written confirmation of their qualifications, skills and/or relevant experience; evidence of registration with their respective professional body, if applicable; proof of evaluation by the South African Qualifications Authority (SAQA); and if necessary, a certified translation into a recognised South African language.

3.Intra-Company Transfer Work Visa

The Intra-Company Transfer (ICT) Work Visa category will of course continue to provide for the transfer of foreign employees, to a branch, subsidiary or affiliate company in South Africa. In order to be eligible to apply under this category, a foreign employee must have been employed with the company for at least 6 months before their proposed transfer and the employer must undertake to ensure that a plan is developed for the transfer of skills to a local South African citizen or resident.

Unlike the other two categories of Work Visa, in the interests of encouraging this local transfer of skills, the ICT may only be granted for up to 4 years and will not be made renewable. Therefore, upon the expiry of the ICT visa”s validity, the foreign employee will have to leave South Africa.

Corporate Work Visa

Under the new regulatory revisions, the requirements for obtaining a Corporate Work Visa, permitting a limited number of foreign employees to be employed by a corporate applicant, has been expanded. Other than having to justify the need to employ a set number of foreign employees, employer will need to: obtain a labour certificate from the Department of Labour; evidence their registration with relevant statutory bodies; undertake that they will be responsible for the foreign employees” immigration compliance; and evidence that at least 60% of their permanent staff are South African citizens or residents.

Similar to the General Work Visa, employers will need to account for the likely difficulties in obtaining the requisite labour certificate from the Department of Labour. Furthermore they will also need to be aware that the Department of Home Affairs will not only need to consult the Department of Labour but also the Department of Trade & Industry.

Corporate Work Visas will only be granted for a period of up to 3 years, are not renewable and under the revised regulations, the holder will not be permitted to change to another visa category from within South Africa.

If you have any questions or queries about South African immigration, please contact us.