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New Immigration Regulations - Update 29th May 2014

by Robbie Ragless

Dear friends, clients and colleagues

Please note that the new Minister of Home Affairs is having a meeting with legal council and key stakeholders including representatives from FIPSA today. Please follow up tomorrow on the outcome of this meeting.

Weeks of speculation about what the planned new immigration legislation might hold has culminated in sharp criticism of the law which came into effect on Monday, 26 May.

As a result, sweeping changes to the visa-applications system, which are meant to curb violations of the visa conditions, have now made it much more complicated for professionals to conduct business in the country and partners of South African citizens to remain together.

President Jacob Zuma and the Minister Naledi Pandor, former Minister of Home Affairs, signed-off on new immigration legislation on Friday, 16 May 2014. This only mere days before Minister Pandor vacated her position as Minister of Home Affairs and handed the reigns over to newly appointed Minster Malusi Gigaba.

Yesterday media reports confirmed that the Forum of Immigration Practitioners (FIPSA) had criticized the newly gazette immigration regulations during their meeting on Monday saying, the new legislation had an array of shortcomings which would make it extremely difficult to apply for a work visa or any other visa.”

Spouses, whether married or in a common law relationship, will have to prove a two year relationship before application, which is unconstitutional. Spouses of work permit holders are excluded from applying for certain permits in South Africa and would have to apply from abroad, which is irrational and unconstitutional.

To add to our concerns the new legislation also means that foreigners will immediately negatively be affected by the fact that this law has already been implemented at various international ports of entry / exit.  The legislation boils down to the fact that persons leaving the country without a valid permit or visa in their passports will no longer be fined, but will instead summarily be declared as ‘undesirables’ for between 12 months and five years, irrespective of whether they simply overstayed or correctly and timeously applied for an extension of their status but it had not yet been processed by the DHA.

The New World Immigration team also questions the general preparedness of Home Affairs offices in dealing with the appeals and associated paper work this situation will result in. Alarmingly, days after the implementation of the new legislation many Department of Home Affairs offices were still following old procedures.

So what does the new law state?

Visa Application process under the new Immigration Regulation

For those interested in Immigration to South Africa the below provides you with some pertinent facts regarding the visa application process under the new immigration rules.

The below also explains the situation regarding those who have committed to what was called a permit application (now to be called visa), but have to still to submit it to the Department of Home Affairs.

Is it a permit or visa?

A somewhat cosmetic change but now all permits will be referred to as visas.

I have signed up for a permit but it is not yet submitted

This will depend upon the type of permit you were planning on applying for and where you were applying for it from.

  • If you are in South Africa on a tourist visa and were planning on making an application for a temporary permit at a local South African Department of Home Affairs (DHA), either in person or via an immigration lawyer or practitioner, you will no longer be able to.
  • If you are abroad, it will depend upon the type of permit you are applying for. If your application was for:
    • A quota work permit.
    • An exceptional skills permit, both temporary and permanent.
      These permits are no longer available. We are still waiting on exact requirements for a Scarce Skills visa which is replacing these two mentioned above.
  • Further, if you were hoping to apply for a life partner permit you must now be able to show 2 years co habitation. This is at the top of our list of issues to be contested in the High Court of South Africa.

I was going to apply for a quota / exceptional skills work permit – what now?

We and other reputable immigration companies have known for some months that these permits would no longer be available under the new immigration rules. Due to this we stopped offering this (in February) as an option, in the full knowledge they would not be processed in time. We therefore hope not many people are in this situation. If you unfortunately are, it may not be all doom and gloom. We would need to qualify you again once we gain clarity on the new Scarce Skills Visa once the dust settles after the litigation proceedings.

A new category called the critical skills work visa is now available. This list is a draft and open to public comment but reliable sources close to the DHA inform us this will be the working list until it is reviewed.  You may therefore qualify under this new category.

The good news about this category is applicants can immediately apply for permanent residency if they can prove 5 years work experience after they received their academic qualification.

Can I still submit my application in South Africa?

It was common practise for applicants to enter South Africa on a visitors visa and then apply for temporary residency at a local Department of Home Affairs. This is no longer permitted and all ‘first time’ applications must be made from your home country. Again this has been common knowledge since late February so applicants should have been well prepared.

Where you are now in South Africa and on a visitors visa, there are some complex issues to manage. Not least that you can no longer submit your application in South Africa but also the range of fines and punishments if your visitors visa has expired.

Important Note – if you are here in South Africa on an expired visitors visa you should consider and seek opinion about leaving prior to May 26th when the new regulations come into force otherwise you may be declared an undesirable person for between 12 months and 5 years and prevented from entering South Africa.

The good news is dependants of work visa holders may change the conditions of their accompanying visa to study or work inside SA and need not return to their home countries.

I have read that applications must now be made in person.

Correct and in line with international standards. Under the Visa Application process we will still however accompany clients where required as well as pick up permit decisions.

Where do we submit applications now?

The DHA is outsourcing all applications to a company called VFS, however the date for this is not yet announced. It may well be in June now the new immigration rules are in effect, but this is not yet confirmed. Until then it is still the DHA.

This we believe can be a positive step and you can read more about here.

What about renewing my existing permit?

This can be done in South Africa but it must be done 60 days before expiry of the current one.

Please bear in mind that although it is referred to commonly as a renewal, in actual fact it is the same as applying for a new permit. In this case if you are on a quota work permit or exceptional skills work permit, you will not be able to renew and must look at different options.

Summary

The main effect will be those persons:

  • in South Africa on visitors visas wanting to make a visa application;
  • those who were compiling applications for now defunct ‘permit’ options;
  • and those life partners who have not cohabited for 2 years.

The Visa Application process under the new Immigration Regulations is very different to the ‘old ways’. As with any process change, this may bring teething problems and unfortunately there will be some ‘immigration consultants’ who are not up to speed. It is therefore more important than ever to ensure you get the correct advice.

It seems we are heading for interesting and perhaps frustratingly confusing times. If you have any concerns or queries contact me directly.

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