Immigration News Alert

Understanding SA’s new immigration laws

The South African Department of Home Affairs has implemented new immigration laws that have far reaching implications for multinational companies and their employees needing to live and work in South Africa.

Chief Executive of Elliott Mobility Relocation Services, Corallie Pringle says, “The Immigration Amendment Act No. 13 brings into effect new regulations that are intended to bring South African Immigration law up to the standard of other modern societies and offer South African’s additional safety and job protection whilst balancing the need for foreign investment and growth of the nation”

Some of these changes will benefit multinational corporations transferring much-needed skills to support their business, while other amendments will likely result in some delays and red tape until they are better understood and implemented.

“While these amendments have been long-anticipated, their sudden implementation poses some concerns,” says Pringle “It is probable that missions abroad and regional Home Affairs offices in SA have not been fully prepared for the rollout. This may result in processing delays and the re-evaluation of current applications.”

Business as usual

According to Pringle, while some amendments may be challenged as being unconstitutional, those changes are likely to only impact on individuals rather than businesses.

“Notwithstanding some anticipated delays, we believe it will be business as usual and applications will continue to be processed and approved,” says Pringle.

Should you or your company have any questions or concerns regarding the new laws, the Elliott Mobility team is readily available to provide professional advice.

“We are well-versed in all the new requirements and regulations and will continue to offer smooth and seamless immigration services to all of our clients,” concludes Pringle.

What you need to know

As a leader in immigration and relocation services, Elliott Mobility’s team of specialists have compiled a comprehensive guide covering all the available information from the South African Department of Home Affairs in an effort to provide an overview of all of the changes and their implications for businesses and employees.

Click on a visa or permit category below to see exactly what’s changed and how Elliott Mobility can assist:

  • Effective 26 May 2014, all requests for an authorisation to conduct short-term work related activities in South Africa must be applied for at relevant mission abroad before arrival.
  • The Visa will be granted (on approval) for a maximum of 90 days (or as per the visa exemption) and cannot be extended.
  • If a longer work assignment is required, the employee/applicant will be required to leave the country and apply for the relevant work Visa before he/she returns to South Africa.
  • The requirements for the Section 11(2) visa differs from country to country and upon request we will advise the company on these requirements.
  • Processing time for these Section 11(2) visas will also vary, however, we can anticipate a processing time of no longer than 10 working days.
  • The duration of this category of work visa has been extended from 2 years to 4 years and is not renewable.
  • In order to qualify for the Intra-Company Transfer work Visa the assignee needs to be employed at the company abroad for more than 6-months.
  • For secondments of employees on work assignments from overseas to local SA entities, the extension to 4 years is advantageous to business and obviates the need/cost/complication of having to extend the permit under General Work Permit category with a Waiver of Specific Requirements (an arduously bureaucratic and long process). 
  • The requirements for this category of work permit now includes an undertaking from the Company to have a Work Skills Transfer Plan in place for the transfer of skills and that the applicant must submit his/her application in person and abroad (not within South Africa).
  • This new category of Work Permit has been introduced, which will replace the Quota and Exceptional Skills Permits.
  • The criteria and requirements for this category of Work Permit have been published and we can provide you with a list of categories upon request.
  • Assignees currently on the Exceptional skill and Quota Work Permits upon extension of their permits they will need to comply with the requirements of this category in order to obtain a Critical Skills Visa.
  • Will now require recommendation from the Department of Labour, we have received a list of requirements from the Department of Labour and additional requirements for this category include an Employment Equity Plan and a Work Place Skills Programme.
  • The Department of Labour is now required to issue a certificate confirming:  
    • despite a diligent search the employer has been unable to find a South African citizen or Permanent Resident with qualifications and skills or experience equivalent to those of the applicant
    • the applicant has qualifications or proven skills and experience in line with the job offer
  • The salary is not inferior, the contract of employment is in line with labour standards
  • The contract of employment is in line with labour standards and is conditional upon approval of the visa 
  • The Department of Labour confirmed that the processing time for their recommendation is 30 working days provided all documents are in order and there will not be a fee for this process.
  • Corporates will be subject to a site inspection by the Department of Labour during the process of applying for a work visa.
  • All employees need to have records on their foreign employees passport, permits and contracts available for inspection.
  • To qualify for a corporate Visa, a company must demonstrate that at least 60% of its employees are South African. This poses particular difficulty to foreign companies who are contractually bound to bring expatriate skills to projects where local partners supply the South African staff.
  • The company can obtain a permit listing the number of foreigners they may employ and the positions that the foreigners may be employed in.
  • An authorisation certificate is then received for each foreigner to be employed. The new Regulations provide that a corporate worker may not renew his permit, or apply for a change of status in South Africa.
  • The corporate permit has been limited to a three year period.
  • Applications for corporate worker permits must be accompanied by SAQA Certificate proof of professional registration, making the process similar to that of a general work permit application, save that the placement of the foreigner is approved in advance.  
  • All parents traveling with minor children must be in possession of an unabridged (full birth certificate reflecting the particulars of the parent) and the child.
  • If only one parent is traveling with the child, he or she must also have consent from the other parent, in the form of an affidavit.
  • A court order by a divorced parent or a death certificate of a deceased spouse must be provided.
  • This also applies to adults traveling with non-biological children and to children travelling unaccompanied
  • The Department of Home Affairs has provided a grace period to allow children to travel with parents or guardians without an unabridged birth certificate until end of September 2014.
  • Renewals or extensions can be made in South Africa. The Department has appointed VFS Global to receive and manage visa and permit application.
  • VFS Global will open Visa and Permit Centers in June in all of South Africa’s 9 provinces, with Johannesburg’s Centre going live on 18 June and Cape Town on 20 June.
  • The following applications must be submitted to the applicant’s closest VFS Global Centre – temporary residence visas, permanent residence permits and appeals.
  • Prior to submission, there will be a mandatory online form which applicants must complete, followed by a mandatory appointment (submission of applications must be done in person by the applicant in order for biometrics to be captured).
  • An application submitted in South Africa needs to be submitted 60-days prior to the expiry date of the permit.
  • Whenever possible, our recommendation has been to submit applications abroad as the processing time has been significantly speedier than submitting within South Africa given the requirement that the purpose of entry should not be changed (e.g. entering on a Visitor’s Visa and then applying for a Work permit in-country)
  • The new regulations now require that first applications must be submitted abroad in person.
  • These will be more rigorously applied
  • Fines will no longer be charged for overstaying; the foreign national will be declared undesirable for periods of 12 months up to 5 years depending on the period of overstay.
  • We do not recommend that assignees travel if their permits have lapsed as this change has been implemented with immediate effect.

 

  • Section 46 of the Immigration Act has been removed, effectively deregulating the role of professional Immigration Practitioners/Law firms in submitting applications on behalf of foreign nationals with requirement for applications to be submitted in person to missions abroad or regional offices within South Africa.
  • This deregulation does not limit professional Immigration Service Providers from providing Immigration Consultancy Services, including advice on the most appropriate permit category, processing application for submission (including completion of required documentation, motivation letters and ensuring all requirements are met).
  • In addition to the above consultancy services, Elliott Mobility offers accompanied support for submission of applications within South Africa (our Consultant queuing at Home Affairs Office, navigating process and limiting the time and aggravation to the assignee).

Spousal Visas in respect of foreign nationals married to or in a permanent cohabitative relationship with a South African citizen or resident will now have to prove, that the relationship has been in existence or the marriage is older than 2 years. Proof would have to be by way of either Marriage or Civil Union certificate or a Notarial Deed of Cohabitation.

 






Moving Services:   Office Hours - +27 (0) 11 256 3000
After Hours - (+27) 71 453-0214