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SOUTH AFRICA – Implementation of the New Immigration Regulations

On 26 May 2014, the South African Department of Home Affairs (DHA) put into effect the long-discussed new Immigration Regulations. However, there are serious issues and it is possible that the implementation of the new rules will be cancelled via High Court action next week. In the meantime, and until further notice, there are some important aspects of the new Regulations which companies doing business in South Africa need to be aware of, particularly with regard to pending applications from within South Africa.

Legal Action

A case will be heard next week at the High Court in Cape Town, with the aim of forcing the government to cancel the implementation of the new regulations until the flaws and inconsistencies have been ironed out. It is therefore possible that we will see a return to the old legislation within the next couple of weeks.

No Travel for Applicants with Pending Applications - URGENT

All applicants with pending applications within South Africa, whose existing permits have expired, must not under any circumstances attempt to travel out of the country or they will be declared “Undesirable Persons” and this will bar them from returning to the country for up to five years (depending on the length of time that has lapsed since their permit expired).

Previously, under the legislation prior to amendment, a foreign national would be fined for overstaying and, upon settling the fine, would be allowed to return to the country; this is no longer the case.

Barriers to Making Applications both Within and Outside South Africa

Practical Submission of Applications

The Department of Home Affairs in South Africa has stopped accepting applications; which should now be submitted via VFS, according to the new rules. However, only two of the new VFS Visa & Permit Centres have opened, leaving applicants in other locations unable to submit applications until the VFS Centres open in their respective areas. South African consulates abroad also appear to be largely uninformed about the amendments.

Problems with General Work Visas

It has still not been established how the Department of Labour will implement the new requirement that it will issue certificates of approval which must be submitted along with ‘’’General Work Visa applications’’’.

The necessary infrastructure and processes to fulfil this role are not yet in place, and there is no uniform list of documents required to support positive certification.

Moreover, there is still no legal framework to appeal the Department of Labour’s decision, if it refuses to issue a certificate to support the General Work Visa. Nor is there yet any legislated period of time in which they have to make a decision or issue a certificate.

Problems with the New Critical Skills Work Visa

The list of skills, qualifications and experience which qualify an applicant for the new Critical Skills Work Visa has still not been published; thus it is currently not possible to make an application in this particular work visa category.

New Requirements for Intra Company Transfer Work Visa

The main changes to the Intra-Company Transfer Work Visa category include the following:

  1. The applicant must be employed for at least six months with the company abroad before an Intra-Company Transfer Visa can be applied for;
  2. Intra-Company Transfer Work Visas may be issued for up to four years (48 months) and are not renewable (previously a 24 month restriction applied); and
  3. The employer, amongst other undertakings, must ensure that a plan is developed for the transfer of skills to a South African citizen or permanent resident.

It has yet to be established whether it will be possible to extend Intra-Company Transfer Work Permits, issued under the terms of the Immigration Act prior to the amendment, for the further period of up to 48 months, taking into account the provisions of the amended legislation, or whether it will still be necessary to follow the current process of applying for a Waiver and subsequent General Work Visa in such cases.

Other Changes to the Draft Regulations

There have been some changes and additions since the draft regulations were published in March (see our earlier alerts here, here and here.

VFS Visa and Permit Centres

VFS Global will now receive and process all visa applications submitted from within South Africa. VFS Global will operate new Visa and Permit Centres, which will open in June 2014 across South Africa.

However, at present only two of these centres (in Rustenberg and Pretoria) have opened.

Please note the following:

  • Applications will be accepted from Monday to Friday from 8am to 4pm;
  • Each application will attract an additional service fee of R1350.00 excluding VAT (this excludes the Government application fee); and
  • Applicants will have to visit the Visa and Permit Centre in person to have their biometric information recorded.

Changes to Police Clearance Certificate Requirements

It is no longer possible for an applicant to provide an undertaking to submit a police clearance certificate (or certain other supporting documents required in respect of their initial application) to the Department of Home Affairs within a period of six months from the date of issue of the permit or visa . All applicants must now submit all relevant police clearance certificates with the initial application. This will greatly extend processing time for many applications, where the authorities in the country of origin or recent residence of the applicant take a long time to issue police clearance certificates.

However, police clearance certificates are no longer required for an extension/renewal application, with the exception of a South African police clearance certificate, which is required to support an extension/renewal application if the foreign national has resided in South Africa for 12 months or more.

Repeal of Continued Employment Conditions for General Work Visa

The requirement to submit proof of continued employment under the terms and conditions of the applicant’s initial employment, including their job description, within six months from the date of issue of the employee’s General Work Visa (previously “Permit”) and every 12 months thereafter, has been completely repealed.

Action Items

  • Note that the new Immigration Regulations are now in place, but that there is considerable confusion about their implementation, and the possibility of a return to the old legislation next week, depending on High Court action.
  • Note that applicants with pending applications and whose current permits have expired must not leave South Africa until their applications are approved
  • Note extended processing time for new applications due to the requirement to submit police clearances with the initial permit application.

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.