An overview of the new immigration laws and regulations and their implications, by Home Affairs Director-General Mkuseli Apleni, at the information session for Members of Parliament: Parliament, 23 April 2015

 

Honourable Speaker

Honourable Ministers and Deputy Ministers

Honourable Members

Distinguished guests

Ladies and gentlemen,

 

On behalf of the Minister and Department of Home Affairs, I thank Parliament for including in the Information Session for Members, this overview of the new immigration laws and regulations, highlighting what has changed and implications thereof.

Honourable Members would know that the Immigration Amendment Acts, 2007 and 2011 and the Immigration Regulations, 2014, came into operation on 26 May 2014, and that the Immigration Regulations, 2014 repealed the Regulations made in 2005.

This was meant to better manage immigration in a way that balances South Africa’s openness to travellers as well as developmental and security imperatives.

In 2013-2014 financial year the country welcomed 13.5 million foreign nationals who came as visitors. Many South Africans are themselves travelling to various parts of the world. Our Department issues about 600, 000 passports annually to citizens who want to travel.

Since announcing the new regulations, we have said, consistently, we welcome constructive engagement from stakeholders.

Prior to the legislative amendments, there were gaps in legislation, thus the reliance on some form of ‘tick-box’ compliance as opposed to effective screening of applicants.

There was evidence of abuse of the Refugees Act, with over 90% of applicants only seeking economic opportunities.

Loopholes in legislation were making it possible for some to undermine immigration laws, thus preventing orderly migration, with a potential to fuel extortion, abuse and exploitation of migrants, especially of those with fraudulent or no documents at all.

Several cases were reported of girls, some as young as six, who were smuggled into South Africa, others in car boots, who ended up in the hands of syndicates, rapists and human traffickers. 

We are mindful that many people from across the globe make a valuable contribution in the country, such as captains of industry, scientists, sporting personalities and academics, and thus the changes we see in our new visa regime.

The National Development Plan (NDP) also points clearly to the urgent need to attract international migrants with critical skills.

What has changed is that the Immigration Act (2002) and its Regulations have been amended to refer to all categories of “temporary” residence permits as “visas.” This is to distinguish clearly between short stay visas and permanent residence permits.

The only permits to remain are permanent residence permits, for a longer stay.

Also altered, with security imperatives uppermost, is that all new applications for visas will be made at our Missions, and in person. This will allow for the implementation of a risk-based approach to immigration management, including verification of applicants prior to arrival in the Republic.

A change of status or visa terms and conditions from within the Republic will not be permitted for persons on Visitor’s or Medical Treatment Visas. Persons who want to effect such changes will need to apply from outside the Republic, however, extensions are provided for in the legislation.

Also to be clarified is that the authorisation to work under a Visitor’s Visa, in terms of section 11(2) provides for people, in specific categories, to work, for a period of 3 months. But this is often abused with some expecting to stay in the country beyond the duration for this visa, instead of applying for an appropriate visa, such as a critical skills or other work visa.

Also related to this is the long term Multiple Entry Visa issued for a period exceeding 3 months and up to 3 years. This visitor’s visa is issued to frequent travellers coming to South Africa, for example, for business meetings. However, each entry may not exceed 90 days at a time. We have extended this initiative to the BRICS countries by the issuing of a visa to BRICS business executives for a period of 10 years.

For vast countries, we intend to provide more centers where people can apply for visas. Already we’ve opened 7 visa facilitation centres in India and 2 in China. Importantly, in its Annual Performance Plan (APP) for 2015/16, the Department plans to implement the capturing of Biometrics at ports of entry (including fingerprints and photos.)

From 1 June 2015, a person travelling with a child will be required to possess an unabridged birth certificate of the child, and written consent from the parent or parents authorising such travel, that is, if the child is travelling with somebody else or with only one parent.For countries abroad, we require any legal document issued by the relevant authority containing similar details (i.e. identity of child, father and mother) as you would have in an unabridged birth certificate.

The parent of a child who was registered with one parent in the National Population Register will not be required to provide consent from the other non-existent parent. The Department has developed Standard Operating Procedures approved at Ministerial level to standardize the implementation of the requirement for an unabridged birth certificate and related documents.

This requirement should assist in curbing the abduction and kidnapping of children, sometimes even by one of the parents, in addition to the issue of child trafficking.

Study Visas are now issued for the duration of studies rather than renewing such on a yearly basis, as this proved to be cumbersome. A student at a University or FET college will be allowed to conduct part-time work for a period not exceeding 20 hours per week. This is inherent in the Study Visa and students do not have to apply for authorization.

Business Visas are to be issued for businesses showing potential to advance national interest. In this regard, relevant Departments (including Trade & Industry and Labour) will assess first the feasibility of a prospective business venture, including compliance with labour laws and the benefit such would have for the SA economy.

At least 60% of the total staff compliment employed in the operations of a business will have to be SA citizens or permanent residents, for job creation and skills transfer. The NDP enjoins all of us to create jobs.

An investment amount for the business visa was also revised in consultation with the Minister of Trade and Industry – from R2.5m to R5m. This amendment caters for South Africans to participate in the economy by giving them an opportunity to open businesses as well.

After consultation with relevant departments and in view of the now enacted Employment Services Act, a decision was taken to repeal the quota and exceptional skills work permits and to introduce a category of Critical Skills Work Visa, to assist in attracting critical skills to the Republic.

A Critical Skills Work Visa may be issued even prior to employment. Also considered in the adjudication process is the applicant’s family, as a unit.The holder of a Critical Skills Work Visa may apply for permanent residence, without waiting for five years.

A critical skills list was prepared in consultation with business and other government Departments, including Higher Education, Economic Development and Trade & Industry. This list was published on 3 June 2014. It is not cast in stone, as we remain open to further recommendations.

Critical skills are those likely to advance national interest. Scarce skills are not in this category. Emphasis is on those skills lacking in the country, thus the distinction.

The Corporate Visa is project-based and issued therefore for a specific period, up to the completion of the project, after which holders of this visa are to leave the country. It is also subject to abuse with some attempting to stay beyond the prescribed periods.

However, where the corporate has not completed its project, for example, Medupi, the Department may issue a new Corporate Visa or amend the existing Corporate Visa to cover the duration of the project. Furthermore, consideration has been made (and awaits the Minister’s approval) to allow persons with critical skills who are employed under Corporate Visa to apply for a Critical Skills Work Visa within the Republic. 

We have listened to the concerns from global companies that two years was inadequate for international assignments. As such, we have now increased the period of an Intra-Company Work Visa from two years to a maximum period of four years in order to serve its intended purpose.

In addition, we require the foreigner’s contract of employment with the company abroad to be valid for a period of no less than six months. Applicants who were issued with this visa for two years in line with the previous legislation will be able to extend their visa for a further period of two years whilst in the Republic.

However, the Intra-Company Transfer Work Visa cannot be used by a representative of a business abroad to come to South Africa to open a new business, as the legislation requires that the business must exist in South Africa, as a branch, subsidiary or affiliate. Such company representative(s) must apply for a section 11(2) visa to come and establish a business.

Instead of paying a repatriation deposit upon application for a visa, employers are now required to ensure, and make guarantees, that their foreign employees will comply with the terms and conditions of their visas and leave the Republic upon termination of the contract or employment or expiry of the visa. Costs of deportation may be demanded based on guarantees.

Changes to the General Work Visa allow foreigners to compete in the open labour market. In this regard, the employing company has to showand motivate why a South African citizen or permanent resident could not fill the position and demonstrate efforts made to obtain the services of a citizen or permanent resident.

A Transit Visa will in the case of air transit, be issued for a period not exceeding 24 hours; andin the case of land transit, for a period not exceeding 48 hours, to assistin identifying persons travelling through the Republic. This is required only in countries with which we share borders (namely, Zimbabwe, Mozambique, Swaziland, Botswana, Namibia and Lesotho), and only applicable to visitors to those countries. Nationals of these countries together with those in possession of long term visas (work, business, study) and permanent residence permits are not required to apply for Transit Visas.

One of those areas where we have been grossly misunderstood is the Visa Waiver/Exemption. It applies to visitors for holiday purposes, and may not be used for other purposes requiring specific visas, like for study, work or business purposes. Therefore, any person not coming for holiday purposes must be authorized (by the Mission) in terms of section 11(2) to conduct work, study or business whilst on holiday.

Any person who overstays the duration of a visa or permit will now be listed as an undesirable person and may be prevented from returning to the Republic for a prescribed period. Such persons no longer have the option to pay a fine, as this did not serve as an effective deterrent in the past.

The legislative amendments and regulations I have alluded to were critical to beef-up national security and ensure economic interests were met and international obligations fulfilled while we review our entire approach to migration. The Department is developing a new International Migration White Paper, to overhaul the 1999 policy framework, replacing it with a new framework. 

The new policy framework will bring certainty also on:

  • How to manage economic migration in South Africa 
  • How to address the regulation of shops owned by foreign nationals, and 
  • How to ensure foreign nationals whose visas entitle them to work are employed in accordance with provisions of the Basic Conditions of Employment Act.

On a related matter, in partnership with other state agencies, we aremaking inroads in establishing the Border Management Agency which will guard and protect our country’s land, sea and air borders. It will help greatly to enhance border management.

We are committed to building a professional, modern, world class department capable fully to provide secured, integrated and efficient identity and immigration systems.

It’s with this understanding we’re undertaking an immigration paradigm shift, the end of which should yield improved security, better prospects for meeting our socio-economic goals and fulfilling our international obligation to uphold human rights for all of humanity.

Indeed it would be a very sad day if any of us would wake up one day oblivious of the fact that this very country was built of the blood and sweat of the friendly people of this continent and selfless sacrifices of our international friends abroad.

Let’s celebrate, next month, Africa Day in peace and friendship with all our neighbours.

Once more, thank you deeply for this opportunity.

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