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SOUTH AFRICA – Details Announced of Significant Immigration Changes Ahead

The Department of Home Affairs has made its long-awaited announcement regarding significant immigration changes to come in South Africa in 2014. The Immigration Amendment Act No. 13 of 2011 amends the Immigration Act No. 13 of 2002 (as amended). These changes have been anticipated for some time and are scheduled to come into place later this year; in theory by June 2014. Note that currently these amendments are in draft form only and so this list is not final, and the amendments are subject to change. The new draft regulations are scheduled for publication for public comment by 1 February 2014. The key proposed amendments are as follows.

Change of Terminology

All temporary residence permits will be known as visas. This includes visas for those who will be on business in South Africa, visiting as a tourist, studying, working, retiring, participating in an exchange programme, applying for asylum and more.

Personal Appearance Required

All applicants will be required to apply in person for their visas. This includes applications submitted within South Africa. Previously this was not the case, although it was commonly required for applications submitted at South African diplomatic posts around the world.

No Change of Status

Change of status from one immigration category to another within South Africa will no longer be permitted, apart from in exceptional circumstances. Previously this was possible, and in fact, it was common practice for some time for foreign nationals to enter South Africa as visitors and apply for work permission from within South Africa.

This practice has not been recommended for some time, but will now no longer be possible in the vast majority of cases.

“Exceptional circumstances” has not been defined in the current immigration regulations.

No More Quota Work Permits

The Quota Work Permit, under which a foreign national could qualify for a work permit which was not restricted to a specific company or employer, if their skills and qualifications fell into a specific Professional Quota category, as determined by the Department of Home Affairs, will cease to exist. No new applications in this category will be possible.

Exceptional Skills Work Permit Will Become Critical Skills Visa

The Exceptional Skills Work Permit will become a new category called “Critical Skills Visa” and will be available to foreign nationals who hold critical skills, as defined by the Minister of the Department of Home Affairs, and published in the Government Gazette. This is similar to how the Quota work permit currently functions.

Intra Company Transfer Visas for Four Years?

It seems likely that Intra Company Transfer visas, which are currently restricted to a maximum period of 24 months with no renewal possible, will be issued for up to 48 months. However, the specific period for which this visa will be issued has not been defined in the Immigration Amendment Act – it will be necessary to wait for the Immigration Regulations to be published.

It is likely that there will be additional and stringent requirements to prevent abuse of this category.

Changes to Corporate Permits

Corporate permits, which currently may be issued to companies wishing to bring in a large number of applicants to facilitate this process, will become known as Corporate Visas.

Individuals holding visas issued under a Corporate Visa approval will be restricted to working for the entity to whom the visa was issued, which will impact on manpower and recruitment agencies, many of which currently obtain corporate visas in order to supply manpower to their clients.

Additionally, corporate visas will no longer be issued to any business undertaking declared “undesirable” by the Minister of the Department of Home Affairs. Such businesses will include establishments such as strip clubs.

Finally, work visa status under a Corporate Visa approval will no longer lead to permanent residency; i.e. individuals with this type of work visa will not be able to apply for permanent residency after five years on this status in South Africa, as is currently the case.

Penalties and Restrictions

The Immigration Amendment Act also includes a number of changes related to penalties and restrictions, as follows:

  1. Foreign nationals found in possession of fraudulent permanent residence permits as well as individuals for whom a warrant is outstanding or a conviction has been secured, in any country, for human smuggling and trafficking will be designated as Prohibited Persons. Prohibited Persons do not qualify for admission to South Africa or any temporary or permanent residence status.
  2. Persons overstaying their visas a number of times 9the exact number is to be confirmed) may be declared Undesirable Persons and will no longer qualify for any temporary or permanent residence status or admission to South Africa. Such foreign nationals will have to apply to the Director General of the Department for the waiver of the grounds of their undesirability before they are allowed to return to South Africa.
  3. Employers and foreign nationals failing to comply with their duties and obligations, as detailed in the Immigration Act, will face sentences of a fine or imprisonment for a period of up to five years. Currently, the maximum period of imprisonment is 18 months for such offences.

Action Items

  • Note the significant changes due to take place later this year but also note that at the moment, these amendments are in draft format and are subject to change,

This alert was drafted using information provided by J Fetting Inc

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2017 Peregrine Immigration Management Ltd.