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SOUTH AFRICA – Draft Immigration Regulations Released

The South African Department of Home Affairs (DHA) has now published draft Immigration Regulations for public comment. Once finalised, the long awaited Regulations are expected to come into effect at the beginning of April 2014.

The draft Regulations propose major changes to the current immigration legal system in South Africa with the aim of toughening up requirements and enforcement to prevent abuse of the system. There are also some positive changes for corporate work assignments, including an extension of maximum validity for Intra Company Transfer permits (now visas) to four years.

The major changes are summarised below:

Passport Requirements

More stringent passport requirements have been proposed that require that all passports are machine readable and contain at least two completely blank pages when being presented for the endorsement of a visa or entry stamp issued upon arrival in South Africa.

More Stringent Admission Requirements

Foreign nationals will, on entry to South Africa, be legally required to provide the residential address of their intended place of stay and full details of their host. The Department must be notified of any changes to this information during their stay. Foreign nationals will also be subject to biometric verification, prior to admission to and departure from the country.

Travelling with Children

Anyone, regardless of nationality, travelling into or out of South Africa with children will need to provide correct documentation. Parents must provide an unabridged birth certificate along with written permission, an affidavit or a court order if the child is travelling with only one parent or neither.

Application in Person

All applicants for visas outside of South Africa must submit their application in person at the South African Mission or designated Visa Facilitation Centre in their country of nationality or residence.

All applicants for change of status or visa renewal/extension from within South Africa must also apply in person at the designated office of the DHA, at least 30 days prior to the expiry of their existing visas.

Changes for Visitors’ Visas

  • Foreign nationals wishing to visit South Africa for more than 90 days for holiday or business purposes will, in addition to other requirements, have to provide a Police Clearance Certificate from all countries resided in for 12 months or more since their 18th birthday.
  • Holders of Visitors’ Visas and Medical Treatment Visas may not apply to change their status or conditions from within South Africa, unless exceptional circumstances exist.
  • Foreign nationals in the following categories, under contract with a foreign employer, may obtain a Visitors’ Visa for up to three years and will not require a work visa:
    • A teacher at an international school;
    • A person involved in producing films and advertisements in South Africa including, but not limited to actor, cameraman, hairstylist, make-up artist, lighting and sound engineer;
    • A foreign journalist seconded to South Africa by a foreign news agency;
    • A visiting professor or lecturer;
    • An artist who wishes to write, paint or sculpt;
    • A person involved in the entertainment industry, travelling through South Africa to perform;
    • A tour leader or host of such a tour;
    • A foreigner required to testify as a state witness in a criminal court;
    • A person undertaking any activity which the Director General of the Department of Home Affairs considers to be for the general benefit of a section of society and which is not inconsistent with the provisions of the Act; or
    • A spouse or dependent child of a visa holder.

Section 11(2): Visitor Visas for Short-term Work

The new Regulations propose tougher documentary requirements for securing permission to conduct short-term work on a Visitor’s Visa in terms of Section 11(2) of the Immigration Act:

Documentary evidence must be submitted confirming the following:

  • the purpose of necessity of the work;
  • nature of the work;
  • qualification required for the work;
  • duration of the work;
  • place of the work;
  • duration of the visit;
  • proof of remuneration or stipend that the foreigner will receive from the employer; and
  • identity and contact details of the prospective employer or relevant person from the host institution.

The Section 11(2) authorisation may not be issued for a period exceeding 90 days.

Three Categories of Work Visa

Only three Work Visa categories will exist; namely General Work Visas, Critical Skills Work Visas (which replace Quota and Exceptional Skills work permits) and Intra-Company Transfer Work Visas.

In the case of all work visa applications, the employer must accept responsibility for the costs relating to deportation of the foreign national and his/her family members. The employer is also responsible for ensuring that the foreign national’s passport is valid at all times.

General Work Visa

The draft immigration regulations propose a major change with regard to applications for General Work Visas, creating two separate application processes with the Department of Labour and the Department of Home Affairs.

Prior to an application for a General Work Visa being made to the Department of Home Affairs, the Department of Labour must first issue a certificate approving the employment of the foreign national and confirming that a long list of specific requirements have been met.

The Department of Home Affairs has therefore shifted all responsibility to the Department of Labour to first verify whether or not, in their opinion, the employment of the foreign national is feasible and meets applicable labour law requirements.

The Department of Labour currently, however, has no Work Visa assessment or appeals process in place, so it remains to be seen how this will work in practice.

Critical Skills Visa

In order to qualify in the new Critical Skills Visa category, a foreign national will have to fall within a critical skills category which will be published by the Minister of the Department of Home Affairs in the Government Gazette. The draft Immigration Regulations do not contain the actual critical skills categories, which are therefore as yet unknown.

A foreign national will also have to provide written confirmation of their skills, qualifications and experience from a relevant professional body, board or council registered with the South African Qualifications Authority. Whereas, previously, any professional body could attest to the exceptional skills or qualifications of a foreign national, the Department is now limiting confirmation from legally-registered bodies.

Intra-Company Transfer Work Visa

The period for which an Intra-Company Transfer Work Visa (previously Permit) may be issued has been increased to four years. The company must undertake to reimburse the Department in respect of any costs incurred in relation to the foreign nationals and any of their accompanying family members.

Study Visas

Previously, foreign nationals studying in South Africa for less than three months did not require Study Permits (soon to be known as Study Visas). Now a foreign national studying for any period requires a Study Visa.

The draft Immigration Regulations also propose much more stringent requirements in respect of Study Visa applications, including registration, insurance and part-time work.

Strict Penalties for Overstaying

Foreign nationals who overstay the validity of their visas will be declared Undesirable Persons and will not qualify for a port of entry visa, visa, admission to South Africa or a permanent residence permit. Once declared an Undesirable Person, a foreign national wishing to return to South Africa will have to apply to the Minister of the Department of Home Affairs to waive the grounds for undesirability. This process can take several months.

The penalty periods proposed in the draft Immigration Regulations for the declaration of undesirability based on an overstay are as follows:

  1. Up to 30 days overstay – declared undesirable for 2 years;
  2. 30 days to 90 days overstay – declared undesirable for 3 years;
  3. 90 days overstay or more – declared undesirable for a period of 10 years.

Action Items

  • Note the many stricter requirements and penalties proposed in the draft Regulations and prepare to be compliant, although it is also important to note that these changes are currently draft only.
  • Note that some of the major changes, if implemented, will require significant restructuring. This may cause serious delays and confusion if these changes are approved.
  • Expect further updates with greater detail about the implementation of the new regulations.

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.