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SOUTH AFRICA – Update on Immigration Legislative Amendments
June 11, 2024
By: Jonathan Fetting
On February 8, 2024, the South African Department of Home Affairs released a draft in the Government Gazette containing several proposed amendments to existing Immigration Regulations (“Regulations”), as promulgated under the Immigration Act. These proposed amendments were subject to public commentary until March 29, 2024.
As previously reported, in a surprise turn of events on March 28, 2024, the Department, seemingly without any regard for public comments, promulgated 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 proposed and the move was widely criticized for its apparent failure to allow for meaningful public consultation.
In April 2024 the amendments to the Regulations were withdrawn. The Minister indicated that the Department would address certain issues with the amendments and promulgate them again in due course.
On May 20, 2024, the Minister promulgated the new, final amendments to the Regulations. A summary of the changes is included below.
Remote Worker Visa (Digital Nomad Visa)
The amendments mark the introduction of South Africa’s long-awaited digital nomad/remote worker visa category. The Immigration Act permits the issuance of a Visitor’s Visa valid for up to three years, to foreign nationals engaging in specific activities within South Africa, as outlined in the Regulations.
The amendments introduce a new sub-category of Visitor’s Visa allowing foreign nationals to work remotely for a foreign employer while residing in South Africa, provided their annual earnings amount to no less than R1 million. If the visa duration exceeds six months within a 36-month period, the foreign national must register with the South African Revenue Service (SARS) for tax obligations. However, if the visa duration is six months or less within a 36-month period, the foreign national can apply for an exemption from the South African Revenue Service from registering as a taxpayer.
Points-based system for work visa applications
The amendments introduce a points-based system for work visa applications. Requirements for this system are outlined in the Regulations. This system will be outlined in greater detail by the Minister through a further proclamation in the Government Gazette. In formulating the points-based system requirements, the Minister must consider various factors pertaining to the work visa applicant including their age, qualifications, language proficiency, work experience, job offer and adaptability within South Africa. Once the points-based system requirements are defined and become law, all work visa applications will be assessed accordingly.
The Minister has clarified that the points-based system will only pertain to applications 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, 1) 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, 2) the foreign national has qualifications or proven skills and experience in line with the job offer, 3) 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 4) 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.
Unfortunately, the DOLE’s role in the GWV application process has been far from efficient and 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 much-needed foreign resources who do not qualify for an Intra-Company Transfer Work Visa or 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 severely lacking.
Exceptional circumstances to change status
Individuals holding a short-term Visitor’s Visa are typically prohibited from changing their immigration status while within South Africa unless specific exceptional circumstances exist. These exceptional circumstances are prescribed in the Regulations and include the need for emergency life-saving medical treatment lasting more than three months or being the accompanying spouse or child of a business visa holder (a visa allowing self-employment) or a work visa holder.
The amendments broaden these exceptional circumstances to encompass being the spouse or child of a South African citizen or permanent resident, as well as being the parent of a South African citizen or permanent resident child.
These changes stem from judgements handed down by the Constitutional Court of South Africa in the landmark judgements of Nandutu and Others v Minister of Home Affairs and Others and Rayment and Others v Minister of Home Affairs and Others.
The changes facilitate the entry of spouses, children and parents of South African citizens and permanent residents as visitors, enabling them to change their visa status within the country. This eliminates the previously burdensome and often costly requirement of separation when foreign relatives were compelled to apply for long-term visas from their home countries or places of ordinary residence. For foreign spouses and partners of South African citizens or permanent residents holding Visitor’s Visas under section 11(6) of the Immigration Act (permitting work, study, or self-employment based on their spousal relationship) fulfilling their parental responsibilities to their South African citizen or permanent resident children, these amendments great provide relief. In the event of the termination of their spousal relationship for whatever reason, they are no longer obligated to depart South Africa to apply for a new visa from abroad, provided they meet the necessary criteria.
Registration with statutory professional bodies, board and councils (work and corporate visas)
To apply for a Critical Skills Work Visa, which can be issued for a maximum period of five years, a foreign national must, among other requirements, furnish proof of their application for a certificate of registration with the relevant statutory professional body, council, or board recognized for their profession by the South African Qualifications Authority (SAQA), as mandated by section 13(1)(i) of the National Qualifications Framework Act.
Professional registration typically signifies a legal obligation to be registered with a professional body, council, or board to practice a profession lawfully. A significant issue with these statutory professional bodies, councils and boards in South Africa is the considerable time they often take to register a foreign national.
The amendments modify this requirement so that if only proof of application for registration is provided, the work visa may be granted for a period of up to 12 months. Conversely, if proof of final registration is submitted, the visa may be issued for the full five-year term.
Similar changes are introduced for the Corporate Visa category. An applicant applying for work authorisation under the visa must also provide evidence of their application for registration with the relevant professional body, council, or board recognized by SAQA, alongside other stipulated requirements. Under the amendments, if only proof of application for registration is submitted, the corporate worker authorization may be granted for a period of up to 12 months. However, if proof of final registration is presented, the authorization may be issued for the maximum three-year period.
Registration with statutory professional bodies, board and councils (permanent residence)
In the case of an application for a Permanent Residence Permit based on self-employment, similar to that of a Critical Skills Work Visa, it is required by law for the applicant to provide evidence of their application for a certificate of registration with the relevant statutory professional body, council, or board recognised by SAQA for the profession in question.
Similar to the amendments to the Critical Skills Work Visa category, the amendments alter the legal requirement for the permanent residence category, based on both the establishment of a new business or having an existing one, so that if only proof of application for a certificate of registration is submitted, the “visa” or “business visa” may be issued for a period of up to 12 months. Conversely, if proof of final registration is provided, they may be issued for the maximum period allowed by law for the respective visa categories.
However, these amendments are illogical in the context of permanent applications since permanent residence permits are issued indefinitely. Therefore, it is unclear what the Department intends to achieve with them in relation to permanent residence applications.
Amendment to definition: Police clearance certificates
Prior to the amendments, a police clearance certificate was defined as documentation issued by the police or security authority regarding the criminal records or character of an individual in each country where a foreign national, applying for a Temporary Residence Visa (“visa”) or Permanent Residence Permit (“permanent residence”), has resided for 12 months or more after turning 18 years of age. This certificate could not be older than six months at the time of application submission. For visa renewal or extension applications, only a South African police clearance certificate was needed.
The amendments prescribe that a police clearance certificate is only necessary from countries where the foreign national has lived for 12 months or more after turning 18 during the five years immediately preceding the visa or permanent residence application date.
Deletion of definition of radiological reports
The amendments remove the definition of a Radiological Report, which is a report by a registered radiologist confirming that a foreign national has been examined and shows no signs of active pulmonary tuberculosis, provided it is not more than six months old at the time of a visa or permanent residence application submission.
A foreign national applying for a visa, including renewals or extensions, or permanent residence is now only obligated to furnish a medical report, defined as a report not exceeding six months in age at the time of application submission, from a registered medical practitioner. This report should encompass their overall health status and outline any existing medical conditions.
The amendments revise the Regulations to stipulate that only a medical report is necessary for visa and permanent residence applications, instead of both a medical and radiological report. They also update the various prescribed application forms on which both were stipulated as requirements.
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.
