Delinking Citizenship and Permanent Residency

/in , , /by

The new white paper is looking to address our current outdated legislation as well as policy gaps in respect to international migration policies and has implemented a more modern holistic approach

How will these proposed changes affect Citizenship by naturalisation?

Delinking citizenship from permanent residence

Our current Citizenship Amendment Act of 2010, allows an applicant to apply for South African Citizenship by naturalisation if they have been a Permanent Resident Permit holder for a period of at least 10 years. Therefore, in terms of our current legislation there is a definite natural progression between the duration of having permanent residence and the right to apply for Citizenship.

The White Paper confirms that the granting of residency and citizenship should now be delinked. It proposes that the permanent residence permit be entirely replaced with a long-term residence visa that will be later reviewable and not contribute towards citizenship. Further a points-based system will be used to determine who will qualify for a short or long-term visa. The Department of Home Affairs proposes scoring an applicant based on their qualifications, age, investment amount, work experience, type of business and the ability to transfer skills. This is not unlike the immigration systems implemented by Canada and the United Kingdom where points-based systems are being used.

Accordingly, there will be no automatic progression from residency to citizenship in law or in practice. Further, that the granting of citizenship to foreign nationals should be considered as being exceptional and requiring an executive decision of the Minister of the Department of Home Affairs.

It is proposed that an advisory panel be established to consider citizenship applications and to make recommendations to the Minister. The purpose of these policy interventions is to enable South Africa to grant citizenship status to foreigners based on strategic, security considerations and national priorities.

In light of the above, if you were considering applying for South African Citizenship, it will be worthwhile taking into consideration the pending changes and making your application as soon as possible.

South African Expats – Is Your South African passport at risk?

/in , /by

Expatriate Tax Exemption Changed

The tax law changes for 01 March 2020, limiting the tax exemption to R1m, have been promulgated. This has caused many South Africans abroad, very often for the first time, to consider the legal formalities of terminating their South African tax and exchange control residency. The financial emigration process does not impact your South African citizenship status, as this is purely a compliance formality from a South African Revenue Service and South African Reserve Bank perspective.

SARS confirmed passport status does not impact tax status

The South African Revenue Services is very aware of the differences between laws falling under the Department of Home Affairs and the Income Tax Act, even releasing a statement noting that –

“…Remember, the change is not related to citizenship and should not lead to South Africans giving up their passports, as its application rests solely on tax residency. Individuals who give up their passports may find they are still tax resident in South Africa and may still be liable for South African tax.”

Simply put, giving up your passport does not release you from your obligations to pay tax to SARS. Conversely, doing financial emigration which confirms you are not liable for tax on your world-wide income, does not impact your South African passport status.

So when can you lose citizenship?

In terms of the South African Citizenship Act No. 88 of 1995 where a South African citizen makes an application to obtain citizenship of another country, once obtained, you automatically lose your South African citizenship. The question on many expatriates lips are how this is possible, when we know you are Constitutionally guaranteed of South African citizenship by right of birth?

The solution

To give effect to your Constitutionally entrenched right, the Citizenship Act makes provision for “dual citizenship”. Section 6(2) of this Act states:

“Any person referred to in subsection (1) may, prior to his or her loss of South African citizenship in terms of this section, apply to the Minister to retain his or her South African citizenship, and the Minister may, if he or she deems it fit, order such retention.” (Our emphasis)

This application must be done before you have obtained your second citizenship and, in our view, cannot be legally declined where application is correctly done.

Where you have missed this deadline, you have technically given up your South African passport. I have consulted with one of the leading experts in the market hereon, Marisa Jacobs (marisa@xpatweb.com) and she mentioned that the loss of South African citizenship is not always equally enforced. There may be many South Africans who hold two citizenships and have never applied, neither had any issues with renewing their South African passport.  She mentioned that the prudent approach, where you have obtained a second citizenship, but have missed the opportunity to proactively apply for dual citizenship, is a special process which can be followed to get this still ratified with Home Affairs.

Breathe A Sigh Of Relief

As an attorney, the only conclusion I can come to is that the writer of the previously mentioned article has confused a variety of South African legislation in coming to the conclusion that one must hand in their passports once moving abroad.

Saffas, I can confidently say that there is a legal and safe process to ensure that your foreign income stays yours, without losing any form of citizenship rights in South Africa, and thus keeping your SA passport safely in your pocket.

Author: Jonty Leon

Plugging the gaps in SA's scarce skills supply

Plugging the gaps in SA’s scarce skills supply

/in , /by

However, there are critical gaps which require immediate attention.

Marisa Jacobs, head of immigration and mobility at Xpatweb, says South Africa should follow the international example: “Import the skills until you have the skills”.

The 2017 Critical Skills Survey, done by her firm, shows that 77% of the participants struggled to recruit “critically skilled” individuals locally, but 76% of the participants indicated that they could find the skills internationally. However, 90% found the process of recruiting internationally to be prohibiting.

Jacobs says this is largely a “perceived problem”. Although the process may be onerous in terms of the documentary burden and the time to process applications for work visas, it is not preventing firms from importing critical skills.

The survey found that employers and multinational companies found it most difficult to recruit engineers (22%). However, information, communication and technology (15%), financial specialists (10%) and specialised technical skills (9%) also prove to be tough areas to find people with the right skill sets.

The Department of Home Affairs published a list of at least 12 sectors where the country is in need of critical skills. This include agriculture, architecture, economics, information communication and technology, engineering and health professionals. This list has remained unchanged since 2014.

Government’s 2017 White Paper on International Migration sites the lack of strategy in the current international migration policy as contributing to the skills shortage. The result is South Africa’s inability to respond to the shortage issue.

The paper further states that the policy is not linked to the skills development and investment priorities of the country and prevents the country from effectively competing for requisite skills in a proactive and flexible manner.

Jacobs notes that in times of economic growth there may be specific skills that are immediately needed. There must be flexibility in the immigration system to allow for a quicker turn-around time in acquiring these skills internationally.

“Once the projects are off the ground the transferring of skills become critical for sustained growth in the country,” says Jacobs. However, the importance of importing skills until the country have the skills cannot be emphasised enough.

The white paper also states that the migration policy “lacks cooperative strategies for attracting and retaining international migrants with skills and capital, and a historic blindness to the retention of international students studying towards occupations that are needed by the economy”.

Jacobs further notes that companies in need of ICT specialists have found the skills they need in India, whilst companies in mining have been successful in attracting talent from Australia.

Statistics from the white paper indicate that from June 2014 to January 2016 the country issued permanent residency permits to 2 175 skilled foreigners. This represented 7% of the total permanent residency permits granted in the period.

This is a concern since the aim of the policy is to promote economic growth through the granting of business, critical skills, and study visas, government states in its white paper, Jacobs says.

She adds that the importation and retention of critical skills does not take away job opportunities from South Africans, since these skills are not available in the country.

South Africa is haemorrhaging high-skilled ICT professionals: Here's where they're going

South Africa is haemorrhaging high-skilled ICT professionals – here’s where they’re going

/in , /by

Le Roux said that technology solutions providers are increasingly getting squeezed by the fact that they are unable to source enough locals to grow their businesses.

The fact that fewer than 60% of all rare skills visa applications for highly skilled foreigners are approved by the home affairs department further complicates the issue, he said.

Many of these so-called foreigners were expatriates from elsewhere in Africa who had lived and studied in South Africa for many years.

Le Roux said the haemorrhaging of high-skilled professionals who are choosing to leave South Africa for ‘greener pastures’ abroad is significantly adding to the problem.

“Because we deal with these workers on a daily basis and have built our company to where we are now thanks to their skill-set, we are probably more aware of the impact of this brain drain than most other employers in South Africa.”

Le Roux added that, although accurate figures for where these chose to settle were not readily available, it was evident from staff losses incurred by his own company and from discussions with colleagues in the ICT sector that Australia was their first choice closely followed by the United Kingdom and the US.

“The main points of attraction for local professionals is that in most cases their qualifications are fully recognised in these countries.

“They are also able in many instances to double or even triple their salaries overnight – at rates that we mostly are not able to compete with.”

Le Roux said a major bugbear for technology companies was the fact that it was extremely difficult and tedious to secure rare skills work visas for foreign nationals and even for non-residents who had graduated from South African universities.

“It is an absolute fact that we have to pay the same salaries and provide the same benefits that these men and women would have received off-shore. This is great for the graduates but it puts additional strain on South African technology companies who are wholly reliant on these workers to maintain and grow their businesses.

“Start-ups especially are having a very hard time in attracting the calibre of tech experts they need to get their companies off the ground.”

Le Roux said that it should be a national priority to keep  young engineers, programmers, software architects, telecommunications professionals and artificial intelligence experts in South Africa to not only create wealth for themselves but to create jobs for millions of unemployed South Africans.

Source: BusinessTech

Department of Home Affairs clamping down on illegal immigrant employment

Department of Home Affairs clamping down on illegal immigrant employment

/in , , /by

Marisa Jacobs, Immigration Specialist at Xpatweb, says that considering recent arrests that have been made, HR professionals, managers, business owners and CEOs need to make sure that systems are in place to ensure that expatriates are legally employed within their business.

“The Department of Home Affairs has warned that they will be increasing the number of audits and investigations among South African companies that employ foreign nationals. This isn’t an empty threat and they are clamping down on foreign nationals who contravene the act as well as employers who are illegally employing foreigners. Anyone who is deemed responsible for the appointment of the person could face repercussions which means that everyone from HR managers to CEOs could face fines or imprisonment,” says Jacobs.

Pitfall no.1: Employees job titles don’t match work visa job titles

Making sure that an employee’s job title matches the title on their work visa is a vital step to ensuring that foreigners are complying with the Act.

“It can happen that a company employs a foreign national and that the employee is promoted or moved within the business. When an employee changes jobs and their job title or position changes, their work visa may no longer comply with the conditions thereof. The process to update the visa so that it is in line with the work contract is relatively simple and straightforward, but it’s a step that many employers overlook, and this can put them at risk to non-compliance,” says Jacobs.

Pitfall no.2: Information on permits don’t match DHA system information

If a company has employed a foreign national already in possession of a visa, the company may not know if the worker’s visa is legitimate, whether it was obtained in the correct manner or even if it was issued by the DHA.

“In this case, we recommend that employers contact the DHA to check what information is on the system. This additional check beyond looking at a work visa is needed to ensure compliance with the Act,” says Jacobs.

Pitfall no.3: No skills transfer plan

Another potential pitfall that companies should take note of is the condition relating to the transfer of skills. Certain categories of work visas for foreign nationals stipulate that the skill that is being imported needs to be transferred to local citizens. If a company is audited by the DHA, the company may be asked to present their skills transfer plans.

“One of the main reasons South African businesses employ foreign nationals is because we don’t have the skills, knowledge or expertise within our borders. Having a skills transfer plan in place is a great opportunity for local employers to upskill their employees and give them an opportunity to learn from foreigners so that they can cultivate the skills that are needed within their business as well as the country. Besides requesting a copy of the company’s skills transfer plan, DHA may further request to interview people who have been earmarked to learn from the foreign nationals,” concludes Jacobs.