Critical Skills Crisis Exacerbated by DHA Challenges, But Hope Is on the Horizon

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The South African Immigration landscape is ever-evolving. However, in the past 18 months, it has faced drastic changes that have compounded pre-existing issues and brought to light new hurdles within the Department of Home Affairs (DHA).

These hurdles, coupled with the slow integration of the immigration legislative reforms announced during the 2023 State of the Nation Address (SONA), have left many wondering how South Africa (SA) will attract foreign talent and curb its critical skills crisis.

The Bumpy Landscape

The main hurdle affecting the South African immigration sphere has been the ongoing backlog of visa applications and Permanent Residency permits within the DHA. This backlog has persisted since 2020 and reached a peak of over 60,000 applications in early 2023.

Unfortunately, despite the mitigation measures the Minister of Home Affairs, Dr Aaron Motsoaledi, has implemented, the backlog continues to persist, placing the DHA under undue strain. The subsequent ripple effect has been an increased number of rejections for trivial and unlawful reasons. The ratio of rejected visas to issued visas is heavily skewed towards negative outcomes – a trend that has surpassed anything observed in the last decade.

Additionally, the unpredictability of the visa application process has been compounded by some embassies and VFS offices pushing the boundaries of efficiency.

These hurdles have placed a spotlight on work visas, especially in light of the critical skills crisis in SA. However, during the 2023 SONA, President Cyril Ramaphosa announced several changes to immigration policies that should attract foreign talent to SA’s shores.

Enticing Foreign Talent Incentives

Amongst the proposed changes include the streamlining of application requirements and the introduction of a more flexible points-based system. Together, these two amendments could speed up the entry of qualified candidates.

Perhaps the most anticipated announcement, however, was that of a Trusted Employer Scheme. The TES aims to directly assist large businesses in bringing talent into the country by providing trusted employers with a predictable migration process. Additionally, the government has proposed shortened turnaround times for these applications.

The President further announced the introduction of a remote worker visa and a special dispensation for high-growth start-ups.

While these proposed immigration policy changes are yet to come full circle, Jacobs remains tentatively optimistic that these initiatives could bring welcome relief to the critical skills crisis.

Xpatweb’s esteemed annual Critical Skills Survey consistently showcases that over 70% of businesses indicate that an international search will assist in meeting critical business objectives. An update on, or insights into, the status of these amendments would go a long way toward easing the concerns of many South African businesses.

Much Needed Insights

While Jacobs has mentioned tentative optimism in the proposed amendments, she acknowledges that the correct implementation is key to ensuring success. She has also mentioned that the DHA still has a few hurdles to overcome and anyone navigating the current immigration landscape requires an in-depth visa application roadmap.

Phindiwe Mbhele (Acting Chief Director: Permits at the DHA) will be joining Marisa Jacobs at Xpatweb’s Global Mobility Breakfast. During the event, Mbhele will provide much-needed feedback on the status of the proposed changes to SA’s immigration policies.

Visit https://www.xpatweb.com/global-mobility-breakfast/ to register now.

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What Businesses and HR Professionals NEED To Know About Overcoming Work Visa Roadblocks

Work Visa Roadblocks Cause Frustration Amid Critical Skills Crisis

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Over the last 18 months, the South African immigration landscape has changed drastically, causing even more roadblocks and headaches for those applying for work visas. While most of these changes have been to rectify the issues within the Department of Home Affairs (DHA), it has resulted in lengthy processing times and mounting rejections for trivial reasons.

With the current critical skills shortage and the need for companies to retain or gain specialist talent through the various work visa categories, it begs the question – how do work visa applicants and businesses best navigate the current challenging South African Immigration Landscape?

The “New” Roadblocks

The backlog within the DHA has persisted, reaching the monumental peak of 62,692 outstanding visa applications in 2023. While the Minister of Home Affairs, Dr Aaron Motsoaledi, has announced several mitigation measures, such as various concessions extending the validity of long-term visas and the deployment of more departmental resources, the backlog continues to persist.

Additionally, the number of rejected applications continues to rise due to the DHA being under such undue strain.t

Marisa Jacobs, Managing Director of Xpatweb, has confirmed that she has “never seen so many rejections” in the market. While the DHA typically rejects applications for not meeting lawful criteria, there seems to be a trend of rejections based on arbitrary and frivolous reasons.

Xpatweb has seen several rejected visas stating that applicants had filed the application incorrectly, despite this not being the case.

Further, Xpatweb has noted that some Embassies and their VFS offices abroad have pushed the boundaries of efficiency – only adding to an already unpredictable application process. These challenges continue to leave many businesses and applications with open work visa applications feeling frustrated and unsure of where to turn next.

While these hindrances are not going anywhere any time soon, a well-planned work visa application roadmap can guide the way.

Alternative Routes

Due to the many hurdles currently in the way of work visa applicants, the chances of needing an alternative strategy has been raised. So much so that Xpatweb has found itself taking a legal approach to resolving any delays in the processing times of work visa applications – especially where clients no longer have the luxury of time and risk losing critical resources.

The “Legal Escalation Method” is a three-step approach that places the DHA or an Embassy under pressure to ensure a reasonable outcome.
Jacobs has stated that while this approach is not one the firm takes lightly, it has had a “massive positive impact.”

A Way Forward

Navigating the work visa application process will continue to be challenging for individuals, HR professionals and businesses. However, it has become clear that understanding the intricacies of the various work visa categories, their qualifying criteria and being fully prepared for every aspect of the application process does wonders for ensuring a positive outcome.

Xpatweb is hosting a business-critical breakfast event with Marisa Jacobs and Phindiwe Mbhele (Acting Chief Director: Permits at the DHA) as the speakers. This event will unpack the biggest topics affecting the South African immigration landscape and is a must for HR and mobility professionals.

Visit https://www.xpatweb.com/global-mobility-breakfast/ to register now.

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Business Welcome New Work Visa Scheme

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Businesses looking to hire talent from outside South Africa are optimistic about the department of home affairs’ introduction of a Trusted Employer Scheme to make the process easier, but are frustrated by current backlogs in the work visa system.

This is according to Xpatweb MD Marisa Jacobs, who told Business Times businesses are still suffering from backlogs caused by a decision to centralise work visa applications at the office of the home affairs director-general.

The decision was reversed last year and the function was returned to South Africa’s embassies worldwide, but the backlogs have put a strain on businesses hoping to recruit international staff with critical and rare skills.

Jacobs said the Trusted Employer Scheme, which should be gazetted by the end of the month, aims to help big business bring talent to the country more easily. “They want to offer those employers that are part of the scheme a more predictable migration process in the sense of documentation. Currently, depending on where you submit from, there are different documents required. They also propose shortened times of between 10 to 40 days turnaround for visa applications, which would be phenomenal.”

Jacobs said the last 18 months had been the roughest Xpatweb had seen in “many, many years”. She said the centralised adjudication system making embassies send applications to head office for processing had held up thousands of visas. “The last update was that it’s still over 50,000 applications that have not been adjudicated. The last update was that the department of home affairs would catch up by mid-2024, which I think is ambitious. We have seen a lot of applications processed, which is positive, but we have also seen the highest rejection rates.”

Jacobs said hundreds of Xpatweb clients were waiting for their visas and appeals to be processed, causing havoc for businesses. While home affairs granted a concession by extending visas automatically to December 2023, those who changed positions or employers would have to travel to their home countries to get a new visa. “It’s what I would call frivolous reasons that are not accurate or per the immigration act. It’s a function of trying to clear the backlog as fast as possible, so the result is unfortunately an inaccuracy that comes with working through them too quickly, forcing applicants to appeal decisions that end up at the department of home affairs again, exacerbating the problem,” Jacobs said.

Xpatweb had found itself taking the “legal approach” to resolve the delay in processing visa applications. She said while this was not the approach Xpatweb would usually take with the department of home affairs, it had a “massive impact”. US immigration advisory firm Berry Appleman & Leiden said in an advisory note that the Trusted Employer Scheme would be available to only 100 companies in the pilot phase, and more companies would be included after three months. “A company must demonstrate its financial capacity to employ a foreign national, its commitment to training programmes for South African citizens, and its status as a responsible corporate entity to qualify for the Trusted Employer Scheme,” they said.

The firm added that qualifying companies must make a R500m investment, employ at least 500 employees with 60% of them being South African, must be in a strategically important industry, have gross revenue of R35m or more, and have an existing skills transfer programme. Once the Trusted Employee Scheme is gazetted, companies will have 30 days to apply. Home affairs spokesperson Siyabulela Qoza did not respond to Business Times’s queries regarding the Trusted Employer Scheme, but said there were no work visa backlogs.

Please feel free to reach out to Xpatweb at contact@xpatweb.com for assistance.

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Standard Bank and Xpatweb Event takes Deep Dive into SA Immigration Landscape

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Considering this, Standard Bank held an exclusive, virtual conversation with Marisa Jacobs (Managing Director at Xpatweb) and Michelle Munemo (Head of International Diaspora Clients at Standard Bank of South Africa) for their clients on 21 June 2023. The session provided in-depth insights on the:

  1. Available options for those awaiting application outcomes;
  2. Implications of the extension issued by the Department of Home Affairs on pending applications;
  3. Update on Zimbabwean Exemption Permits (ZEP); and
  4. Various strategies one can consider, including a legal approach.

Munemo noted that the status of ZEPs remains a hot topic, especially with the Department extending their validity to 31 December 2023. However, attendees found the avenue of litigation particularly interesting, asking several questions on the matter, specifically how one can approach the legal escalation process.

Backlog Woes and the Legal Escalation Process

The first part of the webinar dealt with the Visa application backlog within the Department of Home Affairs (DHA) and how it has evolved. Jacobs touched on the withdrawal of the centralised adjudication system in 2022, which is the cause of the current backlog, and the measures the DHA has implemented to curb this issue.

These include the various concessions extending the validity of qualifying visa applications, appointing more Department resources, and easing Visa requirements. Whilst the DHA remains confident that these measures will assist in clearing the backlog by mid-2024, Jacobs did highlight that this might not be possible.

From this, Jacobs unpacked how one can navigate these backlog challenges and manage long overdue applications, which includes following a legal escalation process. As many attendees were unaware that litigation is a viable route for expediting applicable visa applications, several queries sprung up during this section. So much so, Munemo decided to pause and hold a Q&A session so Jacobs could answer these burning questions.

She then highlighted what the process may look like, stating that the DHA could approve a pending application at various stages during the legal escalation steps –

  • Sheriff approach to give matter attention.
  • Legal step as a follow-through.
  • Approaching the High Court that accepts applications marked as “URGENT” where facts support the application.

From there, Jacobs unpacked examples of High Court orders that Xpatweb has successfully obtained.

The next section covered the challenges with VFS and certain Embassies, along with the high volume of rejections. These challenges can be overcome by a sound appeal strategy and application roadmap which includes a “Litigation Ready” appeal and application.

The ZEP Extension, Ongoing Court Cases, and the Path to Permanent Residency

The second part of the session focused on ZEP holders, the ongoing court cases against the termination of the ZEP permit, and the recent extension announcement by the DHA.

ZEP holders now have until 31 December 2023 to apply for a mainstream visa or special application. The welcomed extension has left many ZEP holders wondering whether they should await an outcome of the ongoing court cases. Jacobs highlighted though, that regardless of who wins or loses these cases, an appeal is likely and as such certainty is not guaranteed with the outcome.

Further, she noted that getting a Mainstream Visa places Zimbabwean nationals on a direct path to gaining South African residency, something that ZEP holders should continue to consider.

From there, Jacobs shared several recommendations to employers of ZEP holders on how best to manage the current circumstances. These include ensuring their employees are on a valid ZEP permit or refugee or asylum permit and being well prepared for audits and the entire Mainstream Visa application process.

Jacobs emphasised that ZEP holders should continue to apply for alternative mainstream visa categories, such as Critical Skills and General Work visas.

The Court Judgements and Appeal

Since the webinar, the future of ZEP holders has changed yet again. On 28 June 2023, the Gauteng High Court in Pretoria declared the decision to terminate the Zimbabwean Exemption Permit (ZEP) programme unlawful, unconstitutional, and invalid.

The Court has ordered that the decision to terminate the ZEP be remitted back to the Minster for reconsideration, “following a fair process that complies with the requirements of Sections 3 and 4 of the Promotion of Administration Justice Act 3 of 2000 (PAJA).” Further, they ruled that Minster is liable for the cost of the application.

Now, the Minster has 12 months for re-evaluation, and pending a fair outcome, existing ZEP holders will “continue to enjoy the [previous] protections,” such as –

  • No holder may be arrested, ordered to depart, or be detained for purposes of deportation;
  • The holder may be allowed to enter or depart South Africa; and
  • No holder is required to produce a valid exemption certificate and an authorisation letter to remain in the country.

As suspected by analysts and Jacobs, the Minister released a statement on Thursday, 29 June 2023, stating that “the two judgments cannot go unchallenged as they set a dangerous precedent.” He has already launched an application for leave to appeal.

The statement goes on to say that the findings are “highly questionable” and involves “matters relating to a sacrosanct principle of separation of powers” – both of which are strong grounds for an appeal.

The Path Forward

The outcome of the ZEP court cases, and the subsequent appeal, only highlight the challenges one faces when navigating the ever-changing South African immigration landscape.

Jacobs appropriately closed her presentation by highlighting the need for a strict submission strategy and application roadmap. She encouraged all applicants and businesses to be fully prepared for the entire visa application process, including the possibility of taking the legal escalation route for an expedited outcome.

For greater success for these visa submissions, and to follow the route of legal escalation, it is best to consult with immigration experts, as they understand the complexities of the visa application process, and deal with the DHA daily, along with the intricacies of escalating a visa application.

Please feel free to reach out to Xpatweb at standardbank@xpatweb.com for assistance.

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Rejected Visas Cause Foreign Nationals Frustration

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The dilemma of a rejected visa would usually have two avenues of recourse, filing for an appeal or submitting a new application. However, these routes have become a monumental challenge for visa applicants. The backlog of over 60,000 visa applications and an unprecedented number of rejections have made the avenues for overcoming a rejection difficult to navigate.

These tricky waters have left many applicants with limited options and unsure of where to turn next.

Backlog woes

The backlog within the Department of Home Affairs (DHA) has persisted reaching an outstanding 62,692 applications. The Minister of the Department of Home Affairs, Dr  Aaron Motsoaledi confirmed this number on 29 March 2023 when he announced the second extension for long-term visa holders with pending applications, which aimed to quell this backlog.

However, as it stands, delays continue to persist, especially as the DHA’s resources are now under undue strain. Marisa Jacobs, Managing Director at Xpatweb, says that the backlog and the growing pressure within the DHA could very well be the cause of the increased number of rejections.

Mounting rejections

The reason for rejected visas ranges from allegedly not meeting certain prescribed requirements, or due to oversight from adjudicators. There is, however, an unprecedented amount of rejected visas in recent months, and Jacobs confirmed that they have “never seen so many rejections” in the market.

Further, many rejections seem to be based on arbitrary grounds. Xpatweb has seen several rejected visas stating that the application was filed under the incorrect category, despite this not being the case, documentation not included in an application when evidence is to the contrary etc. There are also frivolous rejections, and it appears that the quality of adjudication has deteriorated significantly.

Unfortunately, this has made matters far more complex for visa applicants.

Avenues for rejected applicants blocked

Before the backlog, the setback of a rejected visa application was overcome via the appeals process or by submitting a new application. However, as many applicants have an expired status covered by the concession, they do not have viable status to submit a new application.

Their only recourse, then, is to apply for an appeal within 10 days of receiving the outcome. Unfortunately, due to the large number of rejections, the volume of appeals has subsequently increased, placing the DHA appeal section under pressure.

This has resulted in another backlog, this time within the appeals department, and a delay in appeal approvals.

While the hurdles hindering foreign nationals are concerning, all is not lost.

Light at the end of the tunnel

To overcome the challenges of the appeals process, visa applicants should have a strict roadmap and an appeals strategy, which may include –

  • Make it clear where and how the adjudicator has incorrectly rejected the application;
  • Outline any urgency;
  • Be clear, simple, and easy to understand;
  • Include any supporting documents for the adjudicator to review; and
  • Make sure the submission is “litigation ready” standard.

A way forward

Whilst foreign nationals continue to face hurdles due to the backlog and increased number of rejections, there are still avenues available to them via a strict appeals strategy and application roadmap.

Additionally, with the assistance of immigration experts, applicants may find it easier to navigate the application process. Experts in the field can provide the most optimal solutions, and they can best advise when and if an applicant requires a legal approach.

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