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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Home Affairs Game Changer for Approved Corporates Kicks-Off this Week

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Trusted Employer Scheme

The systematic problems with our work visa system needed an innovative solution and Home Affairs have late 2023 announced a “Trusted Employer Scheme”. In order to qualify, companies needed to meet a number of criteria including capital investment, facilitate graduate development programs, employ a minimum of 60% South Africans, and maintain good standing with relevant government departments, etc.

108 Applications, 65 Approved

The Department of Home Affairs received 108 applications, 65 have been approved, 35 employers were declined for not meeting the minimum criteria and the remainder await adjudication. An appeal process is in place for declined applicants, offering an opportunity for reconsideration. There were also late applications, which were not considered by Home Affairs; the point being how can you be treated as “trusted” when you are unable to make the submission deadline?

DHA enters into a Memorandum of Understanding

This MOU was shared to some Trusted Employers last week, and implementation can start as soon as this week, once the formalities have been concluded. Most of our submissions have received this MOU and we will keep a close eye on how quickly this moves to allowing actual submissions and becoming an operational process.

Podcast explaining the Trusted Employer Scheme

In a podcast last week between Marisa Jacobs, Managing Director of Xpatweb, and Phindiwe Mbhele, Director of Corporate Accounts of the Department of Home Affairs, where the Trusted Employer Scheme is unpacked, they confirmed that the scheme design allows South African Employers to fast track almost all visa categories.

This is achieved by exempting and simplifying the complex and time-consuming items of the visa application process.

Critical Skills Work Visa

Employers may under the Scheme submit an undertaking to secure a SAQA Verification and Professional Body registration for the applicant allowing them to secure the work visa while these processes run in parallel.

SAQA verifications currently take on average 4 months to complete, significantly delaying companies to apply for and secure work visas. This new process will allow employers to mobilise talent within a fraction of the time it currently takes.

Mbhele explains in the Podcast that the onus will be on the Trusted Employer to ensure that the minimum requirements of qualifications, experience and professional registrations are met. He adds that the Company has much more to lose by not vetting the talent that they recruit to take the most senior and technical roles in their business.

Intra-Company Transfer Work Visa

For Multinationals applying for Intra Company Transfer Work Visas, they have already demonstrated as part of the Trusted Employer Scheme submission, that they have in place the necessary graduate development programmes, bursary schemes and otherwise skills transfer initiatives to develop South Africans citizens. As such Trusted Employers will not be required to submit skills transfer plans with their Intra Company Transfer Work Visa applications.

General Work Visa

Companies making use of the General Work Visa category will not be required to complete a local job search and obtain a Department of Labour certificate to apply for a General Work Visa. Instead, an undertaking will be required, and which will again aid in a significantly streamlined work visa application process.

Accompanying Family

The Immigration system has especially in the last 24 months been criticised for the separating of families with accompanying spouse and child visas taking longer to process.

Notably, the benefits of the Trusted Employer Scheme will extend to accompanying family members, alleviating a significant source of stress for expatriates and their loved ones.

Strict Compliance will be Key

While the documents requirements are significantly alleviated, this is with an expectation of “Trust” as is so prominently noted in the title of the Scheme Mbhele warns.

Each Trusted Employer is expected to ensure they continue to comply with the requirements noting that the undertakings are in place to ensure the faster processing of applications allowing the mobilising of talent in a fast and predictable manner.

The undertaking importantly, do not absolve the requirement but places the onus on the employer instead. Xpatweb operates a parallel compliance system and dashboard, which provides a technology tool for tracking and retention of records.

In conclusion, the Trusted Employer Scheme is well poised to be the Department of Home Affairs’ most successful initiative yet if it gets the traction promised. The market is cautiously optimistic.

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108 Corporates Seek Trusted Employer Scheme Status: 65 Approved, Implementation Imminent

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This development follows a rigorous evaluation process led by the Department of Home Affairs Corporate Accounts Unit.

Marisa Jacobs, Managing Director of Xpatweb sat down with Phindiwe Mbhele, Director of Corporate Accounts at the Department of Home Affairs to unpack the latest developments in terms of the highly anticipated Trusted Employer Scheme and the roll out.

Mbhele confirmed that the issuance of the memorandum of understanding (MOU) for approved employers is expected within the next day or two for signature, and the Director General is anticipated to counter sign as soon as received, thereby facilitating immediate application under this new and very exciting dispensation.

Jacobs adds that the Trusted Employer Scheme is well poised to be the Department of Home Affairs’ most successful initiative yet if it gets the traction promised.

Noteworthy are the various waivers aimed at enhancing the efficiency of the application process for prospective candidates.

Key Highlights:

  • Proactive steps are being taken, including the consideration of waivers, to accelerate processing and ensure a seamless transition for approved candidates.
  • A firm stance is maintained on compliance, with any deviation from prescribed standards risking severe penalties, leading to the revocation of Trusted Employer Status.
  • An appeal process is in place for declined applicants, offering an opportunity for reconsideration.

We are looking forward to the implementation phase and the efforts from the Department to streamline the immigration process, encompassing waivers to facilitate the ability for Trusted Employers to attract talent and secure work visas in a predictable and secure manner.

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