Home Affairs revises immigration rules and opens second round of Trusted Employer Scheme applications.

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While the proposed amendments to the Regulations signify positive updates to Immigration law, the emphasis of due process when introducing new legislation cannot be ignored. The Minister acknowledged that the DHA needed to head to the call from National Economic Development and Labour Council (“NEDLAC”) and it is imperative for public comments to be heard and duly considered.

The Minister confirmed DHA are in the process of reconsidering and finalising the regulations and will have the revised version gazetted by next week. He further outlined several significant updates and initiatives within the Department of Home Affairs.

Marisa Jacobs, the Managing Director at Xpatweb and Business Representative on the NEDLAC immigration and migration task team gives a brief overview of the key points discussed in by the Minister:

Introduction of the Remote Work Visa

A notable addition is the Remote Work Visa, designed for individuals wishing to reside in South Africa while working for foreign employers. This visa targets high-earning individuals and aims to stimulate the South African economy.

Point-Based System for General Work Visa

The DHA is looking at the implementation of a point-based system for General Work Visas. The Points Based system seeks to eliminate the requirement of obtaining a letter from the Department of Labour. This streamlined approach evaluates criteria such as age and qualifications to determine visa eligibility on an objective points-based scale.

Critical Skills List

Organizations can now expedite the gazetting process for critical skills deemed essential. This removes the previous four-year waiting period, facilitating swift approval for in-demand skills.

Trusted Employer Scheme

The newly implemented Trusted Employer Scheme (TES) has seen great success while the Minister warned approved Employers will face stringent compliance measures, with random checks conducted by the DHA. Non-compliance will result in expulsion from the TES program. It was further stated that there has been a significant increase in interest in TES since it’s implementation on 1 March and thus the DHA is inviting a second round of submissions from qualifying companies to join TES in May 2024.

Management of the Backlog by the DHA

The Minister reported that almost 90% of the total backlog faced by the DHA is in respect of Relative, Dependent and Spousal visas, attributing the delays to difficulties in verifying marriages. Efforts are underway to address this backlog, with a dedicated team assigned to expedite applications.

The DHA plans to provide detailed statistics on visa approvals versus rejections to indicate the current processing times of the various visa categories. The Minister further touched on the current directive which allows any individual who has applied for an extension of their visa and has received a VFS receipt status in South Africa while awaiting the outcome of the application.

Review of the White Paper

The DHA is currently reviewing laws outlined in the White Paper, with a focus on repealing certain sections. Changes being considered adhere strictly to regulatory frameworks, ensuring compliance and legality.

The implementation of the new Start-up Visa

The introduction of a Start-up Visa offers opportunities for individuals wishing to open or invest in small and medium business in South Africa. This will afford these individuals access to the corporate account unit within the DHA.

Take Away

Where you need an urgent work or residency visa, the process has not changed much for the past two years – you need to apply as early as possible and be ready for legal escalation where DHA do not do their job.

We are cautiously optimistic, as we are seeing quicker turnaround on some matters. Yet, we were also today in court against DHA, so there remain two sides to the coin. A correctly issued work and residency permit is one of the most stressful events where it goes wrong, as it impacts every aspect of one’s life.

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South Africa Now Offers a Remote Work Visa for Foreigners

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South Africa has now enabled the same remote working incentive as roughly 50 other countries, including Australia, Brazil, Cayman Islands, Dubai, Germany, Portugal, Namibia and Mauritius, to mention some popular destinations.

The success of the remote worker visa speaks to attracting high earners to contribute to the South African economy and without taking local jobs.

Qualifying Criteria to get a Remote Work Visa

This visa type is issued to an individual and not the foreign employer. However, the individual must be employed by a foreign entity, which means the employer cannot be a South African company.

The following criteria is noted in the Regulations –

  1. That the applicant will be conducting work for a foreign employer on a remote basis;
  2. That such remote worker earns no less than R1,000,000.00 per annum;
  3. Where the visa is issued for a period not exceeding 6 months within a 12-month period, the foreigner will not be required to register with the South African Revenue Services (SARS); and
  4. Where the visa is issued for a period longer than 6 months within a 12-month period, the foreigner must register with SARS.

The Benefits of a Remote Work Visa

Remote working is an international phenomenon and South Africa is now added as a very attractive destination to consider. There are very few professional industries which does not allow some degree of remote working possible, and this is more enabled with technological development.

For example, Cape Town and the Garden Route does not just become a great place for a holiday; but if you like it and your employer allows, you can get a work visa to legally reside and work in South Africa. This visa also allows you to open a bank account, get a mortgage, enter into lease agreements, better buy property and enjoy the country which is often described as offering the best quality of life where you have a bit of money.

The Remote Work Visa was not introduced as a replacement for the long-term visitor’s visa which are offered to individuals but instead has been implemented as a way to provide individuals with the opportunity to work for an employer outside of the Republic of South Africa while still enjoying the beauty of living within the Republic.

The Home Affairs Process

The backlog of Home Affairs on processing visas is well publicized. Also, Home Affairs do not have a great track record of being fast with new implementations. However, with the recent Trusted Employer Scheme the Department of Home Affairs has shown how their A-Team can deliver a world-class solution in record time. We hope that lessons learned will also be applied to the new South Africa Remote Worker Visa. Nevertheless, applicants will be well advised to follow a very strict legal protocol when applying and an in-depth understanding of how Home Affairs adjudicates will remain the most aspect in searching for the correct professional assistance.

The Department of Home Affairs has reached significant milestones, especially with the recently launched Trusted Employer Scheme. The new Remote Work Visa is a further victory for the modernisation of the immigration system in South Africa.

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Press Release: Home Affairs finalises signing of MOU for Trusted Employers within 10 days

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Employers will, by the end of this week, be able to commence the first set of visa applications under the Scheme. This means that all visa applications submitted at VFS in various provinces in South Africa to DHA Head Office, or at any of the representative offices abroad being the different South African High Commissions, Embassies, and VFS centres, will be accepted under the new Scheme for approved employers.

The submission will require fewer documents which the company undertakes and has been entrusted to check on behalf of Home Affairs. These include SAQA qualification verifications and professional body registrations for Critical Skills Visa, Waivers for General Work Visa and Skills Transfer Plans for Intra Company Transfer Work Visas.

The applications will also be processed expeditiously in line with the MOU, by these relevant adjudicating offices. The processing time being –

  • All long-term visa applications                  5 – 20 days
  • Short term visas (up to 90 days)               5 days
  • Waiver and Appeal applications               60 – 70 days
  • Permanent Residence Permits                  8 months

The Department of Home Affairs is off to a strong start, and we look forward to supporting the Department in this project which aims to alleviate the administrative burden on the Department while allowing business to mobilise talent efficiently.

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Home Affairs Approve 68 “Trusted Employers”, Other Work Visa Applicants Must Expect Delays and High Court confirm the process

Home Affairs Approve 68 “Trusted Employers”, Other Work Visa Applicants Must Expect Delays and High Court confirm the process

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This DHA approval allows the trusted employers to get visas in record time and be exempted from various onerous requirements applicable to normal work visa applications. There were 108 applications submitted on time and many more late applications, which the DHA are not currently considering.

Companies and Visa Applications outside the Scheme

The realities for anyone who applies for a South African work visa outside the “TES” scheme remains that they should expect a frustrating process. There are certain Embassy applications which are remarkably quick and efficient, but these remain the exception. It persists the better strategy to expect a challenging process and here are some pointers –

    1. Submit as soon as possible, so you do not have a position where the application becomes late and there is a “self-created urgency”. You must ensure a first-time correct submission.
    2. Each application category has very specific requirements in law and Regulations, however, this is the minimum requirement. There is also an additional layer of requirements based on internal adjudication protocols as well as Embassy specific requirements. It is very important that all bases are covered to ensure a first-time correct application.
    3. The new standard for a South African work visa “submission pack” is that it must be at a litigation ready level. This does not only apply to the content of the application, but also ensuring procedural formalities when doing your submission. We ensure that all our applications are signed off by both an attorney and counsel, as you need to have comfort in your submission where legal escalation is needed.
    4. Monitor the processing times and immediately escalated once overdue. We typically advise a client to start the legal groundwork a week or two before the deadline. Therefore, once a deadline is missed, you can immediately demand that your legal rights are not infringed by the delay in adjudication of the work visa.

Where the above approach is followed, we currently have overall positive experiences, but the market must be educated in knowing that the days of a simple work visa submission and expecting a timely positive outcome is over. There are the notably exceptions, and the market is very grateful for where the DHA or Foreign Embassy shows efficiency, but that remains the exception.

High Court Agrees on Expeditious Processing

On 20 February 2024, the High Court in Pretoria, granted an order directing the Director-General of the Department of Home Affairs and/or the South African High Commission in the United Kingdom to promptly issue the Applicant with their visa.

The Applicant had applied for the visa in September 2023, but up until the court hearing, she had received no response on her application despite ongoing communication and escalation measures. Consequently, the delayed processing of her application led to the unfortunate separation of a mother from her children and her spouse, as her passport was retained by the High Commission for adjudication of her visa application, leaving her stranded in the UK. As a result, the family experienced tremendous financial and emotional strain, which could have been avoided had the application been adjudicated timeously. In addition, the Applicant was bogarted from rendering her contractual obligations towards the company who made the requisite undertakings in terms of her visa application.

Xpatweb current view on the matter is that whilst legal escalation unfortunate, the importance of getting a work visa timely issued and keeping families together outweighs all other factors. What is interesting to note from the High Court decision, is that the Court ordered not only for the application to be finalised immediately on the same day, but also that the visa is granted in favour of the Applicant, ensuring a positive outcome. Thus, the Court made the decision for the Applicant that the DHA failed, alternatively omitted, or refused to make.

While many remain frustrated with the immigration process and backlogs impact processing times, for applicants who have an overdue application a clear path is available.

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Points Based System South Africa

Remote Work and Point Based System: The Department of Home Affairs’ Draft Amendments

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These changes implement a number of the Operation Vulindlela recommendations which aims to improve immigration legislation.

Noteworthy changes include –

  • Providing work authorization for remote workers in South Africa
  • Point-based system for the adjudication of work visas
  • Easing of requirement for the registration with a professional body, council or board recognised by SAQA
  • Amending the requirement of a police clearance certificate and doing away with the requirement of submitting a radiological report
  • Giving effect to Constitutional Court judgments pertaining to spouses or children of South African citizens or permanent residents and the parent of a child who is a South African citizen or permanent resident

Remote Work

One of the suggested amendments will enable a foreign national to work remotely in South Africa for a foreign employer. This is a popular new visa category globally with countries like Portugal, Mauritius, Namibia and many more introducing a nomad / remote work visa in the last four years to attract expats to these countries and which is expected to have a positive impact on the economy. South Africa has seen a number of proposals to implement a similar category and when President Ramaphosa announced that it would be introduced in South Africa during his SONA address in 2023 there was much excitement.

The draft legislation proposes implementation of a remote work authorisaton for foreigners earning no less than R1,000,000.00 per annum.

Professional body registration for Critical Skills Work Visas, Corporate Visas, and Business Visas

The legislation changes in 2014 introduced a new requirement under several categories, but most notable the Critical Skills Work Visa category, for applicants to register with a South African Qualifications Authority (SAQA) recognised Professional Body.

This has been a headache for many as the registration process is out of the control of the DHA and in many instances the professional bodies have themselves put in place cumbersome requirements and long processing times to approve membership.

This makes it difficult for the Critical Skills Work Visa category, that aims to attract talent by “pre-approving” certain occupations, to mobilise these skills.

In the draft changes currently open for comment, the DHA proposes amendments that draws a distinction between proof of application for a certificate of registration with the relevant professional body, council or board recognised by SAQA, on the one hand, and proof of a certificate of registration as such, on the other.

In the event of only being in possession of proof of application for a certificate of registration, the relevant visa will be issued for a period not exceeding 12 months.  However, if the applicant is in possession of proof of a certificate of registration, the critical skills work visa may be issued for a period not exceeding 5 years.

Points-based System

The amendments also introduce a points-based system according to which all work visas will be adjudicated, and which points-based system will be determined by the Minister of Home Affairs by notice in the Government Gazette.  In determining this point-based system, the Minister may consider criteria such as age, qualifications, language skills, work experience, offer of employment and the ability to adapt with South Africa.

This is a welcome development, although it is still not clear what this points-based system will encompass, but we look forward to further developments in this regard to be announced by the Minister in the Government Gazette.

Police Clearance Certificate and Radiological Report

A further amendment brings into law the recent changes from April 2023 communicated by a Circular, relaxing the requirement for Police Clearance Certificates which is now only required from foreign nationals 18 years or older who have resided in a country for 12 months or longer in the last 5 years immediately preceding the date of the application for a visa, which certificate may not be older than 6 months at the time of submission.  In the case of renewal or extension applications for a visa, only a Police Clearance Certificate of South Africa is required.

Previously all certificates since the age of 18 was required which was a cumbersome process for many expats who have spent their career working globally.

As far as the requirement of submitting a radiological report along with a visa application is concerned, this has been done away with.

Police Clearance Certificate and Radiological Report

Two recent judgments of the Constitutional Court gave rise to further suggested amendments pertaining to foreign spouses or children of South Arican citizens or permanent residents.

In the Nandutu judgement, the Constitutional Court found that requiring foreign spouses or children of citizens or permanent residents to leave South Africa to apply for a change of visa status is unconstitutional, as it unjustifiably limits the rights to dignity and the rights of children.  The Nandutu judgment necessitated the changes in Regulations which now allows spouses and children to change status of their visa in South Africa.

In the Rayment judgement, the Constitutional Court found that to require a foreign national who is the holder of a visitor’s visa issued in terms of section 11(6) of the Immigration Act, 2002 (Act No. 13 of 2002) and a parent of a child who is a citizen or permanent resident of the Republic and currently fulfilling his or her responsibilities to that child, or demonstrates an intention to do so, to cease working or leave the Republic as a result of the deterioration of that foreign national’s good faith spousal relationship with the citizen or permanent resident, is unconstitutional.  The Constitutional Court held further that it is also unconstitutional to require a foreign national who is the parent of a child who is a citizen or permanent resident to leave the Republic in order to apply for a new visa.

These two categories have now specifically been provided for in the suggested amendments to the Immigration Regulations, thereby giving effect to these orders of the Constitutional Court.

Conclusion

The DHA has made valuable amendments to support businesses and individuals relocating to South Africa. Important changes, such as provisions for remote work, a points-based system, and reconsideration of requirements like police clearance and radiological reports, demonstrate a forward-thinking approach. Addressing Constitutional Court judgments on family status changes reflects a commitment to upholding constitutional rights. As the public engages with these proposals, it’s clear the Department of Home Affairs seeks input for a collaborative refinement of immigration policies. As such, we urge all relevant stakeholders to submit comments by 29 March 2024, to shape South Africa’s immigration landscape.

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