Entries by xp-admin

Constitutional Court Orders Sections of the Immigration Act, 2002 Unconstitutional: A Victory for Foreign National Parents

11/12/2023 in , /by

The Court’s decision addresses the rights of foreign nationals who, despite the end of their spousal relationships, have children who are South African citizens.

The applicants in this case had been residing and working in South Africa under spousal visas granted in terms of section 11(6) of the Act. These visas were extended over time, but became invalid upon the termination of the spousal relationships with South African citizens. Notably, children were born from these relationships, and the applicants had played active roles as parents, even after the relationships had ended.

The Court engaged with various constitutional provisions, including sections 1, 2, 3, 9, 10, 28, 29 and 39 of the Constitution of the Republic of South Africa, 1996 (“Constitution”), and found that the current provisions of the Act and Regulations unreasonably limited the rights of foreign national parents and their South African citizen children.

One key finding of the Court was that section 11(6) of the Act, pertaining to spousal visitor’s visas, is only available to foreigners if they don’t qualify for other visas, and only valid during the existence of a good faith spousal relationship. The Court noted that if such a relationship ends, the foreigner is not allowed to continue working in South Africa, leading to potential criminal charges if he or she remains. This, the Court held, adversely affects the livelihoods of both the foreign national and his or her South African citizen child.

The Court also addressed the situation where a foreign parent, after the termination of a spousal relationship, is required to leave South Africa and apply for another visa from outside the country. This separation from the child was deemed unconstitutional, limiting the right of the child and the foreign parent to human dignity and the right to family life in an unjustifiable manner.

In response to these findings, the Court declared sections 10(6), 11(6), and 18(2) of the Act, as well as regulation 9(9)(a) of the Regulations, inconsistent with the Constitution and invalid. The Court suspended the invalidity for 24 months, providing Parliament and the Minister of Home Affairs an opportunity to correct the constitutional defects. The Court has ordered that specific provisions be read into the Act and the Regulations during the period of suspension to protect the rights of foreign national parents and their South African citizen children.

This judgment is a significant victory for foreign national parents and their South Africa citizen children, offering relief to those facing the complexities of spousal relationship terminations and the impact thereof on their ability to live and work in South Africa. The Court’s decision underscores the importance of aligning immigration laws with constitutional rights, particularly in situations involving children’s rights and family life.



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Positive efforts made by the Minister as he extends ZEP and LEP permits for a further two years

06/12/2023 in , /by

This announcement brings a sense of relief to approximately 54,653 holders of the Lesotho Exemption Permit (LEP) and 178,000 holders of the Zimbabwean Exemption Permit (ZEP).

On Friday, 1 December 2023, the Minister held a media briefing addressing the uncertainty surrounding the ZEP and LEP permits. Following this, the Department of Home Affairs released Immigration Directives number 3 (three) and 4 (four) of 2023 on Monday, 04 December 2023 to detail the decision by the Minister to extend the Exemption Permits.

Aadil Wadee, immigration specialist and admitted attorney, at Xpatweb unpacks the announcement with some key points that may be taken from above directives as follows:

Zimbabwean Exemption Permits

ZEP’s have now been extended for a further period of 12 (twelve) months up until 29 November 2024. This is to allow the holders thereof to apply for an extension of their current permits. The new permits to be issued will be valid until 29 November 2025.

However, Individuals who had applied for waivers or other visas do not need to apply for new permits, as their current status would remain protected and are exempted from having to apply for a new exemption permit while awaiting the outcome of their applications.

Based on the data available, approximately 88 500 current ZEP holders have applied for waivers or other visas provided for in terms of the Immigration Act. This would mean that the directive directly applies to approximately 89 500 current ZEP Holders.

For those who did not apply for waivers, the Minister emphasized that there is no alternative available. He pointed out that the opportunity to apply for a mainstream visa has been extended multiple times, and he urged all affected Zimbabwean nationals to take advantage of the current window to apply for a mainstream visa. We echo the minister’s statement and encourage all ZEP holders to apply for a mainstream visa before 31 December 2023 as it is the only route to Permanent Residency. Should any ZEP holders not opt for this route, they will be required to apply for a new ZEP permit in order to remain legal within the Republic of South Africa.

Lesotho Exemption Permits

LEP’s have now been extended for a further period of 12 (twelve) months up until 29 November 2024. This is to allow the holders thereof to apply for an extension of their current permits. The new permits to be issued will be valid until 29 November 2025.

The Holder of a valid exemption permit will be allowed to freely enter and depart the Republic of South Africa.

The Minister has urged all LEP holders to take advantage of this extension and apply for their new LEP permits through VFS Global.

The above decision to extend the ZEP and LEP permits comes as the Department of Home Affairs has indicated their intent on appealing the ruling by the High Court in Pretoria to the Supreme Court of Appeal. The judgment required him to go back to the drawing board on the ZEP’s and found his decision to terminate ZEP’s unconstitutional. The Minister had stated that both LEP’s and ZEP’s had to be dealt with and treated equally in order keep both exemption permits consistent with what the Department of Home Affairs is doing.



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Confusion: Backlog vs Scapegoat – Home Affairs Minister says Work Visas has no backlog?

17/11/2023 in , /by

Xpatweb Managing Director, Marisa Jacobs sheds some light on the matter. She confirms that while the Department is experiencing an unprecedented backlog, one needs to look at the specific areas of immigration administration.

She confirms that the backlog is severe, meaning 18 months or longer, for the following categories –

  • Permanent Residency applications,
  • Waivers,
  • Appeals,
  • Retired person visas, and
  • Visitor’s visas for spouses and dependents.

These applicants are often deeply personally impacted by the backlog, and following a legal route is often the only way to get a legally correct outcome.

Work visa applications, however, are being prioritised by the Departments of Home Affairs. Marisa Jacobs confirms that the department indeed fast tracks applications where correctly submitted and as a fully compliant application.

Xpatweb confirms, in stark contrast to the waiting periods noted for other categories, they are seeing work visas and study visas processed within 4 weeks by the Department of Home Affairs Head Office.

Some exceptions must be noted, work visas submitted at the South African High Commissions and Embassies abroad, are subject to their own processing times and we are seeing inconsistent processing times depending on country of submission says Jacobs. This is amplified by many offices with a new rotation of officials in the immigration seat still settling in, combined with high volumes of applications pushing the processing times over the estimated period causing frustration.

There is also a higher rate of rejection where Head Office processes the application and this means that the applicant must submit an appeal, causing a backlog on a work visa of more than 12 months.

The same can be said for waiver applications in support of a General Work Visa application, where the processing time is set at a minimum of 12 months.

In summary, while work visas are prioritised and we are consistently seeing good processing times, there are a variety of exceptions, and this fuels frustration among expats.



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Reduced Visa Requirements: A Key Benefit of The Trusted Employer Scheme (TES) Pilot Launched By DHA

13/10/2023 in , /by

The Trusted Employer Scheme aims to provide qualifying companies a means to a flexible pathway for skilled applicants to obtain work visas expeditiously in line with global best practice.

Marisa Jacobs, Managing Director of Xpatweb, the premium immigration service provider, unpacks the Trusted Employer Scheme based on the recent presentation by the DHA and the Gazette.

What is a Trusted Employer Scheme

Jacobs explains that “South Africa’s work visa policies provide a strong foundation for enabling skills to enter the country but, this review by Project Vulindlela has shown that the unpredictable nature of visa adjudication reduces how well existing policies can serve their intended function.”

Other countries have contended with these challenges and have introduced policies which increase predictability for applicants and business, while managing for different risks presented by immigration.

A Trusted Employer Scheme (“TES”) system allows a country to more easily attract skills and manage immigration, particularly when they process high volumes of applications.

The employer or business needs to show that it has the financial strength to employ a foreign national, that it runs training programmes for South African citizens and that it is a good corporate citizen.

Within this programme, a business or corporate employer can also qualify for priority processing of their visa applications due to reduced requirements and supporting documents.

Purpose of a TES

Jacobs further noted that “The purpose of the TES is to reward trusted users of the scheme with lower document thresholds and faster processing times for visa applications.”

The most important incentive for a corporate employer is quick processing or faster mobilisation of staff, allowing the employer to start earning revenue from the services of the foreign employee earlier.

Jacobs explains that the “this system has been proposed to place a far greater burden of compliance on the employer rather than the state, while putting in place sanctions for non-compliance, in other words, shifting the risk from the state to the employer who is best able or placed to manage it.”

Verification of employers through the TES means that only bona fide businesses which have demonstrated their capacity to abide by the law will be included.

Conversely, if an employer is shown to have transgressed the rules through, for example, an audit conducted by the Immigration Inspectorate, the company may be expelled from the TES permanently.

The Proposed Benefits of the TES include –

  • All visa applications for TES employers will be processed through the Premium Visa Application Centres and One Stop Shop Premium Lounges
  • Reduced visa requirements as per certain concessions
  • Reduced red tape
  • Dedicated Key Account Manager at Home Affairs
  • Commitment to issue work visas as expeditiously as possible and on the basis of simplified procedures and objective, predictable and reasonable requirements and criteria, without consuming excessive administrative capacity
  • Service Level Agreement to obtain work visa outcomes within specified shorter timeframes

Points Based System as the Selection Criteria

A minimum of 80 points is required to qualify for the Scheme.

The TES contributes to the establishment of a more effective and streamlined process for recruiting foreign talent and a boast a big positive step from the DHA to improve visa processing for employers.



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Retire with wealth in South Africa

12/10/2023 in , /by

For many foreign nationals, South Africa (SA) is a dream retirement destination, thanks to its diverse landscapes, rich cultural heritage, and favourable exchange rates. Adding to its allure is the unique aspect of the visa process, which offers a seamless pathway to enjoying the country’s abundant beauty.

Why South Africa

Whether you are looking for a luxurious and expansive residence nestled in the picturesque coastal neighbourhood of Camps Bay, or the modern sophistication of Sandton, SA offers some of the most sought-after real estate in Africa. Unlike most temporary permits, SA’s Retired Person’s Visa allows applicants to own property. Discovering an ideal new residence might feel overwhelming, but thanks to the country’s thriving real estate sector and relatively lower purchase costs, the property market can cater to a wide range of property preferences.

With a favourable exchange rate, applicants can stretch their retirement savings significantly further. The country’s well-established financial sector provides a range of investment options, including robust retirement annuity options, that offer steady and reliable income streams for retirees.

South Africa’s Retired Person’s Visa allows holders to renew every 4 years, and after residing in the country for 5 years, applicants can qualify for Permanent Residency. With Permanent Residency, one would have the right to permanently reside in the country as a South African resident, without the need to renew their visa every 4 years.

Residing in South Africa

Living in South Africa offers a unique blend of diverse cultures, breathtaking landscapes, and natural wonders. The country’s rich tapestry of traditions, languages, and cuisines reflects its vibrant multicultural society. For these reasons it is easy to understand why Cape Town took the top spot at the Telegraph Travel Awards, being voted the world’s best city to visit for the second year in a row.

South Africa boasts a reputation for providing high-quality private healthcare, equipped with advanced medical technologies and skilled healthcare professionals. Taking advantage of the greater financial comfort, retiring in South Africa presents an opportunity for individuals to retire wealthy with access to private facilities.

The Tax Considerations

Throughout the process, applicants must consider the tax implications of their move to SA. They should ensure they meet all the compliance requirements for both the South African Revenue Service (SARS) and the revenue authority of the country they are departing.

Applicants should bear in mind that if they intend to work in SA, they may need to meet additional requirements, which can include ceasing tax residency in previous jurisdictions and becoming a South African tax resident.

Make The Dream a Reality

SA remains a sought-after destination for foreign nationals seeking to settle into an idyllic lifestyle. While SA’s Retired Person’s Visa makes the country even more attractive for these individuals, the immigration process can be complex and burdensome.

Equally important are the various documentary requirements for a smooth immigration process. These remain a critical part of the visa application process and should meet the standards set out by the Department of Home Affairs.

With the assistance of immigration experts, however, the stress of the retirement visa application process is significantly reduced. The well-rounded immigration specialist would plan a roadmap that considers every step of your move to South Africa, ensuring the entire process is handled efficiently and effectively.



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