south africa immigration update june 2014€¦ · year intra-company transfer work permit to the...

South Africa Immigration Update June 2014

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PwC

South Africa in Focus

The South African immigration landscape will be amended from 26 May 2014 with the scheduled implementation of the Regulations giving effect to the Immigration Act, 13 of 2011 (“New Act”).

Opposition to the New Act remains topical and there are discussions, amongst certain quarters (excluding PwC), regarding potential litigation against the Department of Home Affairs (“DHA”) to delay the implementation of the New Act.

The purpose of this presentation is to provide you with additional insight into the key Regulations to the New Act and the impact thereof (positive and negative) upon your current and future operations in South Africa.

PwC view the New Act as a holistically positive development and have adapted our operating model to lessen the impact thereof on our clients.

Stephen Marlin

Introduction

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South Africa Regulations to the Immigration Act, 13 of 2011

Immigration Regulations Status of the Regulations

The draft Regulations to the New Act were published for public comment on 14 February 2014 and closed on 7 March 2014.

The Regulations were signed into Law on 16 May 2014 and published on 22 May 2014.

The Regulations were due to be universally implemented on 26 May 2014 (actual date unknown) – operational challenges within the DHA are anticipated.

Certain consulates abroad already implementing New Act – others awaiting formal instruction.

PwC view… The Regulations to the New Act have been the focus of many media articles and business discussions with diverse views being expressed.

Our view is that the New Act will be a positive improvement subject to effective and practical implementation thereof to support businesses operating to the benefit of the South African economy.

What to expect…see from page 4 onwards

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Definitions and interpretation

Employer: “person contractually bound by the applicable employment contract as an employer or, in the case of a juristic person, its chief executive officer or the person to whom such officer has delegated the final responsibility in respect of personnel matters.

Spouse: “includes a person who is a party to (a) a marriage, or a customary union or (b) a permanent homosexual or heterosexual relationship as prescribed.

The Regulations stipulate that an applicant, in a life partnership to a South African, is required to prove that the relationship has existed for at least 2 years before the date of the application in order to qualify for a visa or permit as a spouse to a citizen or permanent resident.

Such restriction may also be applicable to foreign nationals in a life partnership.

How should you interpret this section?

Employer: Our view is that an applicant may be contractually bound by an applicable employment contract issued by either a South African registered employer or a foreign registered employer operating in the Republic – this will be tested in practice.

Spouse: The constitutionality of the 2 year limitation is likely to be tested as the court has previously found cohabitation to be an essential aspect of “marriage” and legislation significantly impairing the ability of spouses to honour that obligation would constitute a limitation of the Right to Dignity.

Extension of the above argument to life partners could be viewed as also infringing on such right – likely to be tested in practice.

All Temporary Residence Permits will be referred to as Temporary Residence Visas under the new Regulations

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VFS offices will be established and in operation in South Africa from 2 – 23 June 2014 (Johannesburg 18 June 2014)

Submissions in Person

In line with the Advanced Passenger Processing introduced in the Act in 2011, all applicants will now be required to appear in person when lodging an application either at the respective South African Mission abroad or to the DHA in South Africa (now facilitated through VFS).

It is envisaged that processes will be made available to obtain the biometric information of an applicant upon submission and such information will further be made available to the Ports of Entry in order to validate the entry of the applicant.

Applications submitted in South Africa are intended to be routed through VFS at Visa Application Centres to be established throughout the country:

• VFS offices will come into operation from 2 - 23 June 2014;

• Submissions will be by appointment and online request form;

• A VFS Fee of R1 350 (including VAT) will be payable in addition to the DHA Fee prescribed; and

• A VIP Facility / Process will be made available at an additional fee of R500.

VFS currently facilitates visitors visa applications on behalf of certain South African Missions abroad (India, Ghana etc) and their involvement is expected to increase in other countries.

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Applicant’s holding valid work visas, in the absence of restrictive endorsements ,may be permitted to change the status / terms and conditions of their existing work visas in certain instances.

Holders of existing Visitors Permits or Visas will no longer be allowed to change to a longer term permit from within South Africa and will have to return to their home country to lodge such applications - the purpose of this amendment is to ensure that foreign nationals disclose intended purpose and duration of entry prior to arrival in the country.

Exception: Accompanying spouses / children of the holder of a business or work visa may apply for a change from a Visitors Visa to a study permit or work visa from within South Africa.

Challenges that may result:

- Extended lead-times (increased volume of applications abroad); and

- Potential impact on existing assignees (travel requirements to return to Home Country for processing of new application)

Applications in South Africa must now be submitted a minimum of 60 days prior to expiry of the current permit / visa (currently a minimum of 30 days).

Change of Status or Conditions in South Africa

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New: Foreign Nationals now required to report a South African change in residential address to DHA

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South Africa Focus on specific sections

A Corporate visa will be issued for a maximum period of 3 years and the validity of a Corporate worker certificate, issued to a foreign national under the Corporate visa, may not exceed the validity period of the Corporate visa. Regulation 20(11) The holder of a Corporate visa may not renew the corporate visa or change status from within South Africa. Corporate Applicants must prove that at least 60% of the total staff employed within its organisation are South Africa citizens or permanent residents. Extensive validation by the Department of Labour (“DoL”) will result in extended processing lead times.

The Critical Skills Visa will replace the existing Quota and Exceptional Skills work permits and will be regulated by the Critical Skills List (published 3 June 2014).

Regulation 18(6) confirms that a Critical skills work visa may not exceed five years.

The purpose of the introduction of the Critical Skills Visa is to identify skills of value to the country and ease the importation of same.

The Critical Skills list is comprehensive and should adequately address the needs of the country.

Corporate Work Visa Critical Skills Visa

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There has been no further clarification of the specific sectors or industries within which a business must operate in order to qualify for a Corporate Visa.

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Regulation 18(3)(a) requires an application for a General Work Permit to now be accompanied by a “Certificate from the DoL confirming that:

despite a diligent search, the prospective employer has been unable to find a suitable citizen or permanent resident;

the applicant has qualifications or proven skills and experience in line with the job offer;

the salary and benefits of the applicant are not inferior to the average salary and benefits of citizens and permanent residents occupying similar positions in the Republic; and

The contract of employment is in accordance with Labour standards in the Republic and conditional upon the general work visa being approved.

PwC have been informed that employers will need to lodge an application for “labour” (not foreign labour) at the applicable DoL office including the required supporting documentation for consideration.

The DoL will search the Republic for suitable skills to fulfil the listed vacancy and refer any candidates deemed suitable to the employer for consideration.

Upon conclusion of the above, the DoL will issue a recommendation to the DHA which will be required prior to a foreign national lodging a General work visa application.

DoL estimated lead times to issue a recommendation are estimated at 3 – 6 months.

Insufficient clarity on what constitutes a diligent search by the employer (advertisements / recruitment agencies);

Extended lead times impacting the overall process to recruit skilled foreign labour;

Increased administration on employers (additional application process and / or interviewing referred candidates who may not meet the required job profile; and

Potential increase in Labour inspections at employer premises.

General Work Visa

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DoL Process Challenges

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Currently: Study Visas may be issued for a maximum period of 3 years (subject to the main work permit holder’s permit duration if less than 3 years).

Now: Study Visas may be issued for the full intended duration of study (subject to limitations where applicable – main assignee’s assignment period etc.) lessening the administrative burden by reducing multiple extension applications.

Additional compliance obligations now exist for learning institutions (Registrar / Principal undertakings).

Primary schooling, a study visa will not exceed 8 years

Secondary schooling, a study visa will not exceed 6 years.

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Positive development Regulation 18(10) provides for an intra-company transfer work visa to be issued for a period not exceeding four years (cannot be renewed).

However, there is no evident provision made to extend or renew an existing 2 year Intra-company Transfer work permit to the maximum period of 4 years from within South Africa.

The implication is that existing Intra-company Transfer work permit holders may need to return to their home country to apply for a new Intra-company Transfer work visa or for the balance of the 4 year period if with the same employer

Intra-company Transfer Work Visa Study Visas

Regulation 18(8) prescribes a minimum period of 6 months employment prior to qualifying for an ICT work permit.

New: Proof of medical cover for Study Visas must be with a medical scheme registered in terms of the Medical Schemes Act

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South Africa Penalties for non-compliance

Directive 9 of 2014 Foreign nationals departing South Africa

under an expired visa will be classified as an Undesirable Person and subject to mandatory fines.

Foreign nationals departing South Africa under an expired visa (even with proof of a pending application at the DHA) will also be regarded as overstaying, subject to a fine and classified an Undesirable Person.

With respect to the Employer / Deemed Employer

• Existing penalties (fines and / or imprisonment) increased

• Imprisonment without the option of a fine for certain offences (mainly involving civil servants)

Solution: Ensure accurate record keeping, assignment tracking and compliance with the Reasonable Employer requirement (if employing more than 5 employees)

Overstaying results in an Undesirable Person

Up to 30 days – declared undesirable for 12 months (first offence) / 24 months (if second offence occurs in 2 year period)

Longer than 30 days – declared undesirable for up to 5 years

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New Directives

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Directive 5 of 2014 Discontinuation of PR Permits

Endorsement of Permanent Residence Permits

Previously, upon the granting of Permanent Residence (“PR”) to a foreign national, a Permanent Residence Permit (commonly known as an endorsement) was endorsed in the foreign national’s passport in addition to the issuance of a PR Certificate.

In order to improve the authenticity and integrity of PR Permits, in the view of the DHA, such “endorsements” will no longer be issued in the passport.

The PR holder will now be required to travel with their PR Certificate and present same upon departure and arrival for verification purposes (which increases the administrative burden).

The discontinuation of the PR permits is prospective and thus does not impact foreign nationals currently in possession of endorsed PR permits (until such time the passport needs to be renewed).

The aim is to enhance the security features of a Permanent Resident Permit

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Directive 6 of 2014 Delegation to issue Section 11(2) Visitor’s Visas

On 13 May 2014, the Deputy Director-General issued a Directive with immediate effect, delegating the adjudication of all Section 11(2) Visitor’s Visa / Permit applications to the South African Missions abroad due to staffing concerns within the DHA Head Office.

Previous process: Visa and Visa Non-exempt passport holders were required to first obtain a Pre-authorisation letter from the DHA Head Office prior to travelling to South Africa (Visa Exempt) or submitting their Visa application abroad (Non Visa Exempt).

New process: all foreign passport holders intending to conduct work activities in South Africa for a period not exceeding 90 days will be required to first approach the South African Mission in their home country to receive the necessary authorisation.

All foreign passport holders are now required to obtain a Section 11(2) Visitor’s Visa in their home country prior to travel to South Africa

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Directive 6 of 2014 Impact of the Directive

Visa Exempt Passport holders

New Process

An application with reduced documentary requirements must be lodged at the South African Mission abroad incorporating a full motivation by the sponsoring entity as to the need for the resource and urgency of travel.

Application Fee

It is envisaged, based on feedback from a number of Missions, that no visa fee will be levied for the application for a Section 11(2) Visitor’s Visa for a visa exempt passport holder, however same is yet to be confirmed.

Visa Non-exempt Passport holders

New Process

There will be an improvement for Visa Non-exempt passport holders as the removal of the Pre-authorisation step results in the immediate submission of the full visa pack to the South African Mission.

Application Fee

Remains unchanged.

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Impact The applicant will be required to await the outcome of the application before travelling to South Africa. The adjudication process now rests with the South African Mission and may result in extended lead times to process such applications and different application requirements applied by individual Missions.

Impact Improvement in end to end lead time expected due to removal of additional approval step from DHA Head Office.

PwC

Directive 6 of 2014 Challenges


Implementation

Whilst the Directive confirms distribution to all South African Missions, this is not the case in practice as many Missions remain unaware of same.

Whether all Missions are adequately staffed for the expected increase in submission of applications and clear differences in interpretation regarding the process and supporting documentary requirements amongst aware Missions are additional concerns.

Confirmed differences in interpretation include certain Missions requiring submission of the original passport with others only require a copy of the passport picture page – differences also extend to the specified contents of the required supporting motivational letters.

A leading High Commission also confirmed that Project Managers and Contract Workers are prohibited from applying for Section 11(2) Visitors Visas which will severely impact clients utilising specialist short term skills / experienced project managers on local projects if enforced.

Directive 6 of 2014 to be read in conjunction with Directive 29 of 2011 which initially introduced the Pre-authorisation motivation for a Section 11(2) Visitor’s Visa

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Directive 9 of 2014 Full Unabridged Birth Certificates

Requirement to be enforced as from 1 October 2014

Until such date, all children travelling with their parents will be permitted to travel without the presentation of this document.

All accompanied children entering or departing the country, will be required to present a copy of their Full Unabridged Birth Certificate upon each arrival or departure point. In light of the potential implementation date, foreign national parents of an accompanied child(ren) are requested to obtain this document in advance as certain countries may have extended processing times to issue the required documentation. Where only one parent is travelling with the child, in addition, the parent should then provide: • consent in the form of an affidavit from the other parent as stated on

the birth certificate authorising the other parent to enter or depart the country with the child OR

• court order granting the parent full responsibility and rights or legal guardianship OR

• death certificate of the other parent as stated on the birth certificate. There are other considerations to be applied where children travel unaccompanied or are not the biological children of the parents and this can be discussed if such circumstance applies.

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Directive 43 of 2010 Re-admission of Foreign Nationals into the Republic awaiting the outcome of applications Directive 43 of 2010 permitted a foreign national who was awaiting the outcome of a long term*(Business, Study or Work) permit, and currently present in the Republic on an expired permit, to depart the country on such expired permit without the levying of an administrative fine by presenting the original Acknowledgement of Receipt from the DHA.

The Directive further allowed Non Visa exempt foreign nationals to return to the Republic, for a period of 30 days, to receive the outcome of the pending application without applying for a new entry visa.

On 24 February 2014, the Deputy Director-General of the DHA initially withdrew Directive 43 of 2010 and subsequently reinstated same (after Public Submissions) with the following conditions:

• Applicants who had already departed the country (prior to 28 February 2014) were allowed to return to the Republic to receive the outcome of their pending long term permit without the presentation of an entry visa provided they returned by 30 April 2014;

• Applicants returning after 30 April 2014 would thus require a new entry visa to be admitted into the Republic; and

• Applicants departing the country under an expired permit (even with a DHA receipt) from 1 March 2014 are viewed as overstaying and subject to an administrative fine upon departure.

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*It is important to note that the Directive 43 of 2010 did not initially incorporate the readmission of accompanying family who were awaiting the outcome of Visitor's Visas, however the airport officials exercised a discretion to allow such accompanying family members to travel under the same conditions as the main applicant. The subsequent amendments on 24 February and 28 February 2014 did not make provision for the re-admission of accompanying family members now requiring them to obtain entry visas in order to be readmitted to the Republic.

PwC

Related Legislation

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South African Immigration Employment Services Bill What are the highlights of the Bill?

• Establishment of public employment services to match job-seekers with suitable available work;

• Employers will have to register job vacancies in order for the public employment services system to be effective (in addition to the advertisement that is required as part of the work permit process);

• Employers will be required to undertake additional steps prior to hiring foreign nationals; and

• Locals Citizens may be favoured over foreign nationals in employment.

The above is only an extract of the main features and does not include all changes as a result of the Employment Services Bill.

Obligations on employers?

The Minister may regulate the following when considering a foreign national for an employment opportunity in South Africa: (a) the employers must satisfy themselves that there are no other persons in the Republic with suitable skills to fulfil a vacancy before recruiting a foreign national; (b) the employers may make use of public employment services or private employment agencies to assist the employers to recruit a suitable employee who is a South African citizen or permanent resident; and (c) preparation of a skills transfer plan by employers in respect of any position in which a foreign national is employed.


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South African Immigration Protection of Personal Information Bill

Consequences (for employers) of non-compliance?

The South African Labour Court has exclusive jurisdiction in respect of matters arising from the Bill and The Basic Conditions of Employment Act applies in respect of monitoring & enforcement of the Bill. The Labour Court may, on application by the Director-General, impose a fine not exceeding R 50 000 on an employer that contravenes any of the provisions listed in Schedule 3. Schedule 3 – Offences for which a fine can be imposed by the Labour Court in terms of “requiring or permitting a foreign national to perform work for which such foreign national is not authorised to perform in terms of his or her work permit.”

Summary of Obligations

• May only collect personal information which is prescribed or requested in terms of law

• Data must be requested for a specific purpose

• Must obtain consent to collect and process personal information and be able to justify the need for the such information

• A person can object at any stage in processing to providing such information or request the correction/change of information

• Security measures must be taken to protect information and

• Notify person of any breaches of security/unauthorised access

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In Summary

How can PwC continue to support you?

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Our Solution How will we partner with you?

Solutions already in operation:

• Introduction of custom built immigration technology to support and manage the end to end compliance process, reduce lead times, ensure online tracking and manage risk.

• Specialist teams to assist with adapting your business model (where required) to the New Act to ensure effective immigration solutions and delivery.

• PwC have developed all encompassing solutions to ensure employer compliance with all related legislation (in addition to Immigration) impacting the movement of foreign nationals into South Africa.

While the New Act is viewed as a positive legislative development, same introduces increased penalties for employers.

PwC will navigate you through these challenges by identifying and mitigating such risks...

Agility to change

New Business Model

Streamlined Solutions

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Contact Us

Should you require any additional information or require an individual briefing session on the practicalities of the Immigration Amendment Act, please contact us as required.

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Stephen Marlin

Southern Africa Immigration Leader

Email ● [email protected]

Mobile ● +27 82 650 8096

Office ● +27 11 797 5534

mailto:[email protected]

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