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The Temporary Movement of Persons to South Africa under new Immigration Regulations

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The Temporary Movement of Persons to South Africa under new Immigration Regulations

JB Cronjé, tralac Researcher, discusses the regulation of temporary movement of persons to South Africa

The movement of persons, across borders, to work in another country is in almost all countries a politically sensitive issue. At the heart of problem lies the perception that foreign workers will replace local workers; that they will increase pressure on overstretched government services such as education, health etc.; and, that they will not return to their country of origin. However, changes in the way in which international trade and investment is conducted require countries to develop competitive and coherent immigration, labour and trade policy responses.

South Africa, like all other countries in the region, is no exception. Multinational firms wanting to invest in the country must, for example, be permitted to send executives or senior managers for limited periods of time to South Africa to establish representative offices or branches. Once established, these firms may from time-to-time need to transfer highly skilled personnel from offices abroad to assist in local operations. Equally important, business persons or salespersons may seek entry into the country for short periods to time to negotiate or conclude transactions. Some of these business concerns can be addressed through international trade negotiations such as the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO), the Protocol on Trade in Services of Southern African Development Community (SADC) and the negotiations on the movement of business persons in the COMESA-EAC-SADC Tripartite Agreement negotiations. However, such negotiations create internationally legally binding obligations that have to be implemented. As a general rule, such international agreements are not self-executing and require follow-up action through the adoption of domestic legislation for implementation. The department of trade and industry could play an important role in creating a conducive and business-friendly investment environment through the negotiation of agreements that guarantee labour market access for much needed skilled persons in a predictable and transparent matter. However, the implementation of such commitments requires close cooperation among various government departments and agencies such as the departments of Home Affairs, Labour and the South African Qualifications Authority (SAQA).

In 1995, South Africa made certain commitments under the GATS which offer, among other things, services salespersons; intra-corporate transferees including executives, managers, specialists and professionals; and, personnel engaged in establishment of a commercial presence, temporary access to the South African market to engage in services trade and the supply thereof. Providing access to a market does not guarantee foreign qualified professionals local recognition of their academic or professional qualifications to practice their profession in South Africa. According to the country’s GATS schedule of specific commitments (GATS/SC/78), these categories of persons are afforded “temporary presence for a period of up to three years, unless otherwise specified, without requiring compliance with an economic needs test”. The permitted duration of stay for services salespersons was set at a maximum of 90 days. Economic needs tests are tests that condition market access upon the fulfilment of certain economic criteria. Labour market tests are the most common type of economic needs test and conditions market access on the availability of similar workers in the domestic labour market, or whether a foreign worker would be competing with or displacing a domestic worker. These tests are frequently not clearly specified or defined in domestic regulation, leaving wide discretion in their application and thereby reducing the predictability and commercial value of commitments.

Immigration Authorities play an important role in international trade facilitation through the application of measures that regulate the entry of foreigners into, and their temporary stay in, a country. A central concern is to determine what regulation is needed to facilitate cross-border movement, trade and investment. For example, how do immigration authorities differentiate between business visitors and tourists or migrants? What documents must be presented to border officials to secure access? Must the same set of documents be submitted in each case? If visas or work permits are required, must a person apply beforehand or can it be requested upon entry at the border?

The South African Minister of Home Affairs recently published draft Immigration Regulations in terms of the Immigration Amendment Act 13 of 2011 (Government Gazette No 37335 of 14 February 2014) for public comment. The Regulations are set to enter into force on 1 April 2014. They draw a distinction between temporary and permanent residence, and also provide for the award of visas and work permits for different categories of foreign persons. For example:

  • A visitor visas will afford a foreigner access into the country for a period of 90 days. Persons entering on a visitor’s visa may not conduct work inside the country unless it relates to certain listed activities and remuneration is received from a source outside the country.

  • Foreigners establishing a business or investing in a business may apply for a business visa. However, the applicant must submit a certificate issued by a South African chartered accountant certifying the minimum amount of cash and/or capital contribution as determined by the Minister of Trade and Industry is available; an undertaking that at least 60 % of employees will be locals; and, a letter of recommendation from the Department of Trade and Industry regarding the business’s feasibility and contribution to national interest. Thereafter the holder of the business visa must within 12 months submit a recommendation from the Department of Labour confirmation that at least 60% of the staff compliment comprises locals, who are permanent employees . These obligations are not applicable to local businesses and investors and constitute violations of certain GATS commitments of South Africa.

  • General work visas will only be awarded to foreigners after the Department of Labour has confirmed that all the conditions of the defined labour market test have been fulfilled by the prospective employer.

  • Foreigners will qualify for critical skills work visas if they fall within a predetermined critical skills category as determined by the Minister of Home Affairs. SAQA must evaluate the applicant’s foreign qualification and where necessary, obtain recognition from the relevant professional body. Foreigners with critical skills do not need a contract of employment before coming to South Africa.

  • Intra-corporate transfer work visas have been increased to a maximum period of 4 years.

  • Firms may also apply for corporate visas. They can apply for any number of visas provided they fulfil the conditions of the defined labour market test and ensure that the local staff complement will never be less than 60%. The visa conditions and the permitted period of stay differ for foreigners entering the country in terms of a bilateral agreement, for seasonal work or for employment in the mining or construction sectors.

This case illustrates the importance of interdepartmental coordination and cooperation in the formulation of immigration and labour policies and procedures for the verification and recognition of foreign qualifications in order to inform international trade negotiations. However, once international trade commitments are undertaken, immigration and other authorities must respond by adopting policies and implementing practices to achieve the country’s trade objectives and increase its attractiveness as a business and investment destination.

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