JB Cronjé, tralac Researcher, comments on the recent overhaul of South Africa’s immigration regulations

On 16 May 2014, as part of a complete overhaul of its immigration policies, South Africa’s President signed proclamations for the commencement of two amendment acts, the Immigration Amendment Act 3 of 2007 and the Immigration Amendment Act 13 of 2011. The two amendments to the Immigration Act 13 of 2002 together with new (long-awaited) Immigration Regulations came into operation on 26 May 2014 (Government Gazette 37679 of 22 May 2014). One of the most important objectives of the new Regulations is to facilitate the movement of desperately needed skilled workers and investors into the country to contribute to economic growth. The new legal framework draws a distinction between visas for temporary stay and permits for permanent residence in the country. Further distinctions are made between various types of visas, each with its own set of requirements. In particular, three types of visas are central to the facilitation of the movement of skilled workers and investors namely the critical skills work permit, the business visa and the corporate visa.

Quota work permits and exceptional skills work permits have been repealed and replaced with the critical skills work visa. Foreigners possessing critical skills can apply for a critical skills work visa, without having a job, allowing them to enter the country for a period of 12 months to search for a job. In May 2014, the Department of Higher Education and Training published a National Scarce Skills List: Top 100 Occupations in Demand for public comment (Government Gazette 37678 of 23 May 2014). The Immigration Act compels the Minister of Higher Education and Training to compile a “critical skills list” from which the Department of Home Affairs can develop its own scarce skills list to facilitate the issue of work visas. As a result, the Department of Home Affairs published its own list of skills or qualifications determined to be critical in relation to an application for a critical skills visa or permanent residence permit (Government Gazette 37716 of 3 June 2014).

Foreigners wanting to establish a new business or invest in an existing business qualify for a business visa or a permanent residence permit provided a capital amount of ZAR 5 million is made toward new machinery or equipment and at least 60 percent of the total staff component is locals. Applications must, among other things, also be accompanied by a letter of recommendation from the Department of Trade and Industry regarding the feasibility of the business and its contribution to the national interest. Businesses determined to be in the national interest qualify for a waiver or reduction of the capitalisation requirement. The list of qualifying businesses was recently published after consultation with the Minister of Trade and Industry and include agro-processing; capital/transport equipment; metals and electrical machinery; electro technical; textile, clothing and leather; consumer goods; boatbuilding; pulp, paper and furniture; automotives and components; green economy industries; advanced manufacturing; tourism infrastructure; chemicals, plastic fabrication and pharmaceuticals; creative and design industry; oil and gas; mineral beneficiation, ICT; and infrastructure development. However, business visas may not be issued or renewed to a foreigner who establish or invest in a business that has been declared as an undesirable business undertaking. Undesirable business undertakings include businesses that import second hand motor vehicles for the purpose of exporting outside the country; the exotic entertainment industry; and the security industry.

South African firms can apply for corporate visas to employ a number of foreigners for a period not exceeding three years, after showing the need for employing foreigners. The local staff component of these firms may never be lower than 60 percent of the total staff component. In addition, businesses that have been determined as undesirable cannot apply for corporate visas. These businesses undertakings include exotic entertainment; hospitality industry; fast-food outlets and franchises; and the cosmetic and beauty industry (Government Gazette 37837 of 15 July 2014).

To facilitate the implementation of the new Regulations, the department appointed a private service provider, VFS Global, to receive and manage all visa and permanent resident applications and renewals in the country. The outsourcing partner must implement online application processes, electronic payment methods, maintain a call centre and capture the biometric data of applicants at any of its 11 new Visa Facilitation Centres throughout the country. Once an application has been checked for completeness and biometric data captured, the application is forwarded to the department for a decision.

The new Minister of Home Affairs recently said in his Budget Vote address to the Extended Public Committee of Home Affairs in parliament that the objective of the new immigration system is to “manage immigration securely and effectively in a way which benefits our economy and society, heeds our international obligations and manages risks to national security.” The Minister is firmly of the opinion that the department of Home Affairs is first and foremost a security department and that “the security of our country is paramount and central to all our endeavours”. Consequently, the Minister rejected criticism that the new regulations are part of an ‘Afrophobic’ agenda to keep Africans out of the country and confirmed support for the initiatives of the African Union and Southern African Development Community for the free movement of persons. However, the Minister stated that free movement of persons cannot happen “haphazardly, unilaterally or to the exclusion of security concerns; and neither can it happen without standardising population registration and immigration legislation and addressing development challenges everywhere.” Existing visa waiver agreements with African countries will remain in place but further agreements will only be concluded with countries that are conducting civic registration of their nationals.

One cannot help to have empathy with the South African government. One of their main challenges is the large number of people who seek asylum in the country that are actually economic migrants. These persons use the asylum seeking process to avoid applying for a visa under the Immigration Act. In 2013 alone, over 70 000 new arrivals were registered of which 50 percent are from the SADC region and 30 percent from west and east Africa. According to the Deputy Minister, the government has accepted that the large number of new arrivals to South African shores will continue due to “the unpredictability of the socio-political situation within SADC and the Eastern African regions, the continued impact of the world economic meltdown, the perception of South Africa as a country of better socio-economic opportunities as well as the notion that South Africa is a route to the world beyond.”

To this end, the government’s first response is to relocate refugee reception centres to the country’s borders. The department has also been mandated to establish a Border Management Agency to ensure coordination of and co-operation among the various departments operating at the country’s land, sea and air ports of entry. Second, it seeks an agreement with SADC Members on how to implement the ‘first safe country’ principle and to deal with refugees and asylum seekers who are third country nationals. Third, it is developing a new international migration policy framework which proposes strategies regarding the management of unskilled economic migration.

Many countries grapple with migration challenges in an effort to attract the required skilled persons and investors necessary for economic growth. South Africa’s concerns regarding international crime and terrorism; refugees and asylum seekers; and the integration of foreigners into society are not unique. Unfortunately, ongoing efforts at the regional level to facilitate the movement of persons have been rather disappointing. However, regional economic integration and closer government cooperation to deal with migration challenges more effectively and efficiently are part of the solution.

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