- Published: 29 May 2014
Ladies and gentlemen, welcome and thank you for attending our weekly media briefing following the change in the executive as announced by President Jacob Zuma this past Sunday.We look forward to these regular interactions with yourselves with a view to briefing you on the implementation of government’s programme of action as we enter the second phase of radical transformation of our economy and thus help move South Africa forward.
At the outset of my briefing, let me reiterate some fundamental principles that should continue to guide the Department of Home Affairs.
My view is that the Department needs to continue working hard to ensure that every South African receives good quality service in terms of the critical documentation they need from birth to age of maturity; throughout all the stages of their lives. We need to ensure that we clean up and protect our National Population Register.
Critically, we need public servants who are ethical, have integrity and can be trusted. We need to continue to tighten the capacity of the state by modernizing Home Affairs and providing quality professionals to service our people at our frontline offices.
We must continue to protect our children through the work of the Film and Publications Board. Similarly, I continue to be inspired by how we have, over time, modernized the Government Printing Works (GPW) to enable it to issue secure, credible and high value documentations to South Africans. Plans are afoot to ensure that GPW develops further capabilities in the production of Smart ID cards.
In this regard, all of our officials must be prepared for the hard work that lies ahead as we move towards a hands-on activist and collective leadership that we will provide and they must be ready to play their own part in pursuit of that objective.
We need to continue ensuring the effective and efficient management of migration in the interest of the security of the country while ensuring that it contributes to economic development and prosperity of the country.
Turning to the subject of today’s media briefing, the Immigration Regulations, I am happy to announce that the Immigration Regulations of 2014 came into effect on 26 May 2014. Effectively, this marked the commencement of the Immigration Amendment Acts of 2007 and 2011 and the new Immigration Regulations, 2014.
You will recall that the Draft Regulations were published in the Government Gazette on 14 February 2014 for public comment. The closing date for public comment was 28 February 2014 but was extended to 07 March 2014 to allow for more submissions.
Following this public consultation process, we are happy to announce the following amendmentsto the immigration regulations:
- Under the new regulations the word “visa” replaces the word “permit” except for the permanent residence “permit”. For example, a visitor’s permit will now be called a visitor’s visa, a work permit will now be called a work visa and a study permit will be called a study visa.
- This means that under the new regulations there will be a clear distinction between short-stay visas and long-stay permanent residence permits.
- The Act now requires that every child must possess his or her own passport.
- A person who is on a visitor’s or medical treatment visa may not change his or her status whilst in the Republic except in exceptional circumstances.
- Study visa will be issued for the duration of the study or course.
- No business visa may be issued or renewed to a foreigner who intends to establish or invest in a business that is listed as undesirable business undertaking.
- A person issued with a business visa must employ or prove that 60% of the total staff complement is South African citizens or permanent residents.
- Quota work permit and exceptional skills work permits have been repealed.
- A critical skills work visa has been introduced into the Act.
- An intra-company transfer work visa will be issued for a period of four years.
- A corporate visa will be issued to South African corporate applicants to employ a number of foreigners for a period not exceeding three years, after showing the need for employment of such foreigners.
- An exchange visa (for persons under 25 years) will not be granted to conduct work pertaining to an undesirable work as published by the Minister in the Gazette, after consultation with the Minister of Trade and Industry.
- An asylum transit visa issued at a port of entry will be valid for a period of 5 days to enable the holder to report at a nearest Refugee Reception Office.
- Cross-border and transit permits have been repealed.
- Persons who overstay for a prescribed number of times will be declared as undesirable - fines will no longer be charged for overstaying.
- Owners of or persons in charge of conveyances will be required to provide, through Advance Passenger Processing (APP), passengers’ information prior to departing for South Africa.
- Section 46, which dealt with Immigration Practitioners, has been repealed as applicants will now be required to apply in person at the Mission in the country of origin or where they permanently reside.
- First time application for visa will be made at the Mission and only renewals or extensions can be made in the Republic (at VFS Offices).
We take this opportunity to thank members of the public who took time to respond to the request for public comments during the drafting and finalization of the Regulations.
Question: Minister mentioned that he will be signing some of the documents as of next week, like with the fees that will be spent, he also mentioned that he will only be signing the skills list that is required only next week… What is happening now at Home Affairs? Is it a standstill? What about the people who are planning to maybe get visas as soon as today? What happened on the 26th of May when the regulations were actually passed?
Answer: What I said is said that I am going to sign them and they will be gazetted next week…They are ready for my signature….we shouldn’t be too worried…we will gazette all these notices next week.
Question: My question pertains to regulations that extend to foreign businesses and investors who want to set up businesses in South Africa…What do you make of the comment that the regulations for foreigners are too harsh and this will impact on the number of investors that want to come into the country?
Answer: With regard to investors and business…I think I will take these all together. We are trying to balance between the security needs of the country and the needs of the economy; how far one should go in either direction is always a balancing act and I think it will always depend on a number of variables. What one cannot afford to do is to take into consideration only the needs and interests of the economy and neglects the needs of security or move to the other extreme and address only the needs of security, neglecting those of the economy. What this requires, is that we strengthen our capacity to be able to respond to the needs and requirements of the economy… I am very well aware and I think those are catered for in the amendment in the legislation…of the need for companies such as Transnet and Eskom to be able to bring in skills from overseas for a period of time in relation to the infrastructure roll out programme so that we are able to implement those. I don’t believe that the regulations as they are, they are cast in stone. I think as we move on, through practice and experience, we come to the determination that they are too onerous and impede the growth and development of the economy, then we will take the necessary decisions in that regard whilst not compromising the need for security. But, our immigration legislation has been abused in a great number of times and areas and there is a need therefore, to clarify those and ensure that we streamline and simplify them particularly for implementation. The interesting thing is that when I moved from Home Affairs in 2010 to Public Enterprises, one of the first things I was met with was the need by SAA for us to rethink the transit visas because they said they were losing clients. I remembered that I was here when the decision was taken. I have come back to Home Affairs and now I am sure SAA would be coming back to me to say “but Minister, you remember that issue? We did not resolve it. Now that you are back at Home Affairs we think that maybe you can resolve it for us”. We will continue engaging with them. I think what is important is that departments such as Home Affairs must engage a great deal with business; with state-owned companies; and including the PICC around the infrastructure roll out programme and the facts that according to a certain programme a lot of critical skills will have to be brought into the country. But I think that is addressed in us saying that we will publish the list of critical skills, we will give people a temporary work visa that will last for four years or for the duration of the project. Those visas, especially in areas such as infrastructure, which are critical, can be renewed and I think that those are ongoing discussions we will have. What we cannot do, is, ahead of time, presumptuously, come to the conclusion that the needs of the economy supersede those of security because without security we might not have the economy. We need to try and balance these two in a manner that we think we are doing. We are open to discussions as I say, none of the clauses of the 2007 and 2011 amendments are cast in stone and if they can be changed given practical experience, we therefore believe that even the regulations can be revisited based on the amendments to the legislation.
With regards to what constitutes critical skills, we are talking about artisans that are required by Eskom to build power stations; Transnet around rail and the pipelines; Sanral in relation to the construction of roads; so, we are going to talk to the Minister of Trade and Industry to identify those critical skills and list them but my understanding is that, since I am only three days at work, that those discussions have taken place; those critical lists have been identified and now I need to go through those submissions and append my signature and we publish them. I have indicated that I am not going to delay that; so that if we have to do other amendments in future, let’s rather not delay the publishing of these notices of undesirable businesses. I have listed among those, brothels in the South African context and so, we are going to publish those notices next week via the gazette.
Question: Minister, there are people who are saying some of the sections in the new amendments are unconstitutional and they are saying you are opening yourselves up for litigation in courts, what is your view on that point and are you ready for the legal battle that will ensue? The second thing is the Zimbabwean project; I know that it is still early days for you in office but my compatriots want to know also…what will happen with the project?
Answer: We get that question a lot in South Africa with regard to, virtually, every legislation; there is no legislation that passes without somebody saying “this one is unconstitutional”. Even ourselves, we wouldn’t want administer an unconstitutional piece of legislation. We believe this is constitutional; we have not only tested it in both the National Assembly and the NCOP, we have also consulted senior counsels to ascertain the constitutionality of both the legislation and the regulations. They have reassured us. We accept that even that might not be adequate. If anybody feels strongly that they must challenge the constitutionality of the legislation and the regulations, they are most welcome to approach the constitutional court and of course we will defend ourselves; the constitutionality of the legislation and the regulations; and we will be guided by the wisdom of the Constitutional court as the highest court in the land.
We will come back to talk about what will happen with regard to Zimbabwean nationals in South Africa. The permit, now visa, which they were granted, expires this year. We now need to decide on what shall happen going forward. We are in the process of discussions; in that regard your friends will have to bear with me. Tell them I have only been three days in my new job. I could not have been briefed about everything. Once we have applied our minds we will make the necessary announcements. We cannot promise that it will be in the next week or two or even three because a lot of work needs to go into that thinking and a lot of thinking needs to go into that work.
Question: From what you outlined I didn’t get where kinship permits are covered and I also didn’t get where international servants are covered…if you are in the UN system and you are moving from one country to another…do they fall into these strict regiments or is there a separate amendment for them?
Answer: The employees of the UN, AU and so on are catered for and I think in that regard those shouldn’t worry because they serve under a regime of diplomats but we have waiver requirements…those are catered for, as well, in the regulations. For example, we stipulate here that spouses of people who are in South Africa on business or work visas, if they are professionals and can get a job in South Africa; they can be able to change their status from within South Africa in order to be able to get employment. We have catered for the children; the spouses of those in possession of visas so that we don’t complicate their lives. There are a few instances where we say the applicant would have to go back to their country of origin but in many regards we have catered for them. The instances which are not included are those who come into South Africa on visitors and medical visas. You can’t visit South Africa as a tourist to go and enjoy Table Mountain and whilst you are there you decide “I no longer want to stay in South Africa for a week or a month, I now want to get a job”. We will welcome you if you have got the skills we need and we think you can contribute to South Africa. Just complete your visit; go home; reapply for a work visa or a business visa and come back. We will roll out the red carpet for you.
Question: Some groups are saying that the new rules will discourage from coming in South Africa trying to set up businesses…I’m trying to get a reaction whether this will have an impact on the economy?
Answer: Answered by the response to the second question.
Question: You have come from a ministry that is really a client for the Department of Home Affairs… (inaudible), I wanted to understand how you are going to be approaching the alignment between the economic needs of this country and obviously the security issues that you have raised are very important but balancing the security and economic priorities under you leadership…it looks from the immigration regulations that have been passed that that balance hasn’t been well struck. From a client facing perspective or being a client of the department dealing with those frustrations and seeing them as an impediment to business and also seeing it as a lack of alignment between tourism, growth and NDP.
Answer: This will help deal with problems of unemployment especially with the 60% requirement. It will help in the construction, farming and so on. It is not a panacea; it does not solve the problem of unemployment in the country. Those require the programmes that government has and those the private sector would establish through direct investment, whether they are foreign or domestic.
Question: Can you just tell us some of your plans…maybe a turnaround strategy of some sort? What are you planning to do as the new minister of Home Affairs? The regulations were passed on Monday, 26 May 2014, what has been happening since Monday because we have seen reports that in some of you offices like in Cape Town, officials were told to revert to the old regulations? They were not used from Monday when they were passed until now…how true is this? What has been happening in your missions?
Answer: After three days I cannot tell you that I have plans. I still need to get the briefings and rather not be presumptuous about what needs to be done. The department has been doing a lot of work since I left. During that period they introduced a new passport that is improved and more secure. They introduced the Smart ID card which won an international award. There’s a country in Europe whose smart ID was hacked after a day, ours hasn’t. Its security features are regarded as one of the best. The department has also drastically improved the Government Printing Works which is responsible for the printing and production of our identity documents and cards and has introduced a number of initiatives including the Movement Control System. The dilemma I have is that I was here and therefore I must not come with preconceived ideas when a lot has changed. When I do my Budget Vote, I will be very clear as to the direction that I would like the department to take. But, the vision of a department must not depend on the change in political heads. I belong to the same ruling party that Minister Pandor, Minister Dlamini Zuma and Minister Mapisa-Nqakula belong to. Certainly there are issues of security; civic service; immigration service; the establishment of a Border Management Agency
Question: You mentioned that a person issued with a business visa must employ or prove that 60% of their staff complement is South African…what was the previous number for that? Also, persons who overstay for a prescribed number of times will be declared as undesirable clients…will no longer be charged for overstaying…what are saying here? What is going to happen to these people?
Answer: Previously it was just only five persons and we are changing that.
Question: Was there supposed to be a meeting between yourself and some immigration practitioners? If this happened can you give us a brief outline of what you discussed and what was the conclusion of that interaction?
Answer: As far as I know I did not (meet with them). I know for a fact that Minister Pandor has engaged immigration practitioners a great deal and discussed with them a number of their concerns and tried to assure them that Home Affairs has no antipathy against them. We just want applicants for South African documents to present themselves to Home Affairs as South Africans do when they apply for a birth certificate or an ID…..We expect that an applicant will deal with Home Affairs directly so that in terms of our own systems, when you come to complain we are able to establish who was at which counter at what time so that if there are any disciplinary procedures or any investigation to be conducted, we know exactly who to zoom in on
Question: With regards to your staff at your Home Affairs missions who couldn’t do anything because they were confused about what to do with the regulations…what happens to people who were given permits under the 2002 Act? Do they have to come back and get the new ones?
Answer: You must expect that when new regulations come in there will be challenges in terms of their reception and applicability. That doesn’t constitute a crisis; it is a challenge that requires change management. That is what we are dealing with, to ensure that our officials have a full grasp of the new regulations of the new immigration legislation and therefore our officials know what to do. In cases where they get confused, they must then be taken through change management courses and that is why we have a Learning Academy to assist us with that. We are working to ensure that the consular services of Home Affairs in foreign missions; the DIRCO officials responsible for the receipt of visa applications in foreign missions; as well as Home Affairs officials in South Africa…that they all understand what the new legislation and regulations are as well as the standard operating procedures. I wouldn’t panic for now. Part of what has happened in the department over the last years was the professionalization of our service. I am convinced and confident that we will be able to deal with all of these.
With regard to the 2002 Act, the law is not retrospective. People who received visas and permits in terms of that Act do not need to come to Home Affairs now to change. Once they apply for new visas and permits, it will now be in accordance with this amended legislation. The visas and permits they hold in terms of the 2002 Act remain in application until they lapse.
Question: I would like to know if this is a long lasting solution to xenophobia because it was a fight between locals and foreign nationals over scarce resources…so now you are bringing people with proper skills that will contribute towards uplifting the economy and creating more jobs?
Answer: We think it will but it is not a panacea nor will it on its own combat xenophobia. At times it is not about jobs but about a fight for scarce resources in terms of basic social services. We are considering a policy framework to deal with economic migrants because some of the challenges we deal with in South Africa in relation to migration have to do not just with the issue of employment but has to do with how we manage economic migrants. The South African economy- forget everything you’ve heard- is the biggest in Africa. It is the most vibrant and has been ranked the most competitive economy in the continent. Among those who come here are people without skills who are plain economic migrants. One of the biggest challenges we face as South Africa is that because economic migrants have no other avenue of entering South Africa, they come here from countries where there is no violence and say “I am an asylum seeker”. It is because we don’t have a policy framework to deal with economic migration. Our failure to manage economic migrants contributes towards xenophobia. It is a whole myriad of issues that we are dealing with in order to eventually say as a country that the threat and risk of xenophobia has been minimized. I still want to argue that South Africans are not xenophobic. At times when there is a service delivery riot and people run to loot shops of foreign nationals some we broadly classify it as xenophobia when we must just deal with the criminal element because after the riot has been put down and things normalize, life goes back to normal and the problems that showed themselves up as xenophobia dissipate.
Question: I just wanted to know about foreign freelancers that are working for foreign companies…if these regulations will be a problem for them?
Answer: Foreigners working for foreign companies would do well to familiarize themselves with the new regulations. At times companies prefer to bring foreign nationals to work in South Africa under less desirable conditions. In certain sectors of our economy they would hire foreign nationals and when it’s time for you to be paid they fire you. Freelancers who also work in South Africa would also do well to familiarize themselves with the new regulations. If they came into the country on the basis of the previous Act, they must not worry but they must know that when the life of their existing permits comes to an end they now need to apply in terms of the new legislation. Some of the work done by foreign nationals can be competently done by South Africans. So, can it justify why South Africans are unemployed in South Africa when foreign nationals are employed in South Africa? We are trying to balance those things….that is why we look at critical skills and how we govern and manage economic migrants but there are categories of jobs that cannot fall under critical skills where we must put our feet down and say “employ South Africans”. Ends
Issued by Department of Home Affairs
909 Arcadia Street, Pretoria, 29 May 2014