Residency Permits First On The Block When Home Affairs Opens Its Doors In January

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Foreign nationals hoping to settle in the country more permanently were shocked by the delays because it prevented them from being able to open bank accounts or renew car licenses amongst other things. In fear that they would not be allowed back into South Africa, they were also reluctant to leave the country.  Business owners who were waiting for their permanent residency permit to be approved, found themselves stuck in limbo. They were obligated to continue with their trade and to provide for themselves while being unsure about what the future would hold for them.

Before long, the DHA was compelled to begin processing PRPs due to a backlog of thousands of applicants. In June 2021, they announced that applications would resume from 1 January 2022. However, nearly two years after the onset of the pandemic, the discovery of the mutated Omicron variant, could see the state of disaster being extended well into the new year, leaving those who dream of becoming permanent residents possibly perturbed. The DHA has yet to confirm whether they would continue with their plans to tackle the backlog in the new year.

Preferential treatment for applicants with critical skills

The DHA advised that, from past information, the predominant applicant for permanent residency are dependents, like spouses or life partners. There are, however, numerous cases where the primary applicants were migrants who have been working in South Africa for more than five years or experienced foreign nationals who qualified for a PRP based on their critical skills.

This means that, with the release of the revised Critical Skills List (“CSL”) looming, and the draft CSL having been handed over to the DHA for consideration, they consulted with various government departments, including the Departments of Health, Tourism, Public Enterprises and NEDLAC for additional input. Thousands of skilled foreign nationals are now hoping that their vocation will be listed as in-demand in South Africa so that they can commence a career path in the country.

The immigration regulatory framework has been a topic of concern for a long time. The DHA is notoriously understaffed and wrestles with an archaic IT system, which makes the PRP and visa processes treacherously slow. In response to this concern, the DHA assured applicants that it was working to reduce processing times.

Home Affairs reforms and system improvements

In the Economic Reconstruction and Recovery Plan, the government mentioned that they aimed to approve the recently reviewed lists of critical skills, occupations in high demand and priority occupations to enable highly skilled individuals to be speedily recruited. The DHA further undertook to expedite permanent residency applications of individuals who are in possession of these critical skills.

On 30 November, the DHA briefed parliament on their progress and was applauded for its efforts in modernizing its digital infrastructure through new technologies. They have been working on an automated biometric identification system, an e-visas system, Smart ID cards, not to mention piloting a new appointment booking system and a process to validate digital vaccination cards.

The DHA has taken strides towards improving service delivery for 2022. Come January, skilled foreign nationals, investors, or entrepreneurs who wish to apply for permanent residency or hopes to appeal a negative decision on their PRP application, should brace themselves for a smarter, swifter, Home Affairs experience. They should also consult an immigration specialist to ensure their documentation and motivation letters are prepared and in order when applications commence.

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South African President Appeals To Countries To Lift ‘Unjustified’ Travel Ban

South African President Appeals To Countries To Lift ‘Unjustified’ Travel Ban

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The reimposition of the travel ban comes after the discovery of a mutated Covid-19 variant, called Omicron. While this restriction on the doorstep of the upcoming holiday season could be the nail in the coffin for the South African economy, tourists are temporarily forced into quarantine or barred from entering their own countries of residence.

South Africa in the Covid spotlight

South Africa has been on a slippery slope with the UK since the first lockdowns were imposed. After months of lobbying from tourism bodies and relevant stakeholders, the UK finally relented early in October 2021 and removed South Africa from their red list. This came as a sigh of relief for the tourism industry, who had undoubtedly been the hardest hit by the previous bans.

The minor victory was dealt an agonising blow last week when news of a new strain, far more transmissible than previous strains, came to light. Within hours, the United Kingdom suspended all inbound flights from South Africa, as well as five other African countries. European and Asian countries like Germany, Israel, Japan and Singapore have since followed suit by banning flights and restricting movement across borders. Even Brazil and the US have imposed similar bans against South Africa.

Both President Cyril Ramaphosa and Minister Aaron Motsoaledi of the Department of Home Affairs (“DHA”) have expressed their concern that countries were too quick to impose travel bans without understanding the true nature of the mutated virus. With confirmed cases in the UK, Botswana and Belgium, it can’t even be determined whether the latest variant originated in South Africa.

“We are deeply disappointed by the decisions of several countries to prohibit travel from a number of Southern African countries,” the President said in his speech. “We call upon all those countries that have imposed travel bans on our country and our Southern African sister countries to urgently reverse their decisions and lift the bans they have imposed before any further damage is done to our economies.”

The impact on travellers and the SA economy

During the first 2020 lockdowns, there were tales of distraught travellers stuck in limbo at airports, unable to leave because of travel bans. As borders began opening, this fear of being stuck in terminals caused a reluctance among those with plans to travel for work or pleasure. Then, with normalcy in sight, travel slowly gained momentum throughout 2021. Bookings for the holidays trickled in, while the lift on the ban of alcohol and cigarette sales further broadened the smile of small business owners. However, history is seemingly set to repeat itself.

With the new variant on the prowl, travellers who already arrived in the UK in the last 10 days will be subject to rigorous quarantines and PCR tests in an attempt to contain the spread. However, European, American and Asian tourists inside South Africa could yet again find themselves stranded in a foreign country while the pandemic rages on. Similarly, South Africans in other countries find themselves unsure if they will return to SA this year.

The news also sent a ripple of concern through the travel industry because another travel ban could be detrimental for the country. South African businesses with high hopes to recoup the losses of the previous season, are not thrilled by the notion of closing shop even before the holiday season kicks off.

Be prepared when the borders open up

Tourists are justifiably panicked by the decision of being denied entry into their home countries. Not only are they unable to enjoy their vacation, but they are also unable to see their loved ones. They are further plagued by the administrative nightmare that awaits. Visas must be renewed or extended, flights delayed, excursions cancelled, and work projects postponed. Employment commencement dates for expatriates working abroad could also come under fire.

The Department of International Relations and Cooperation (“DIRCO”) has said that repatriation flights for UK/Irish nationals and those with residence rights, would resume from 30 November 2021. The UK High Commission in Pretoria has confirmed that they would open their borders to flights from South Africa for this purpose alone, but will not be issuing visitors visas, which leaves other travellers in an uncomfortable space.

With all the uncertainty surrounding the current travel ban, travellers should take the time to engage with immigration specialists who are up to date with the most current travel industry regulations and changes. Travellers should further make sure their documentation is in order when the travel ban is finally lifted again. Considering the events of the last two years, it is better to be prepared. South Africans who are isolated in another country without a helpline, can engage with fellow SAFFAs or find Embassy updates on the South Africans Stranded Abroad Facebook group.

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No Extensions For Zimbabwean Exemption Permit Holders

No Extensions For Zimbabwean Exemption Permit Holders

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On 25 November 2021, the Cabinet has announced that no further concession will be allowed and as such ZEP holders will no longer be able to extend their permits in terms of this special dispensation. The Department of Home Affairs have granted a 12-month grace period from the current ZEP expiry to allow permit holders to apply for a visa in a different category to allow them to legally reside in the country.

ZEP Permit Background

The Zimbabwean special dispensation started in 2009 and was called the Dispensation for Zimbabwe Permit. It provided for the documentation of qualifying Zimbabweans for a five-year period.

The permits were extended in 2014 for a further three-year period until 2017 and called the Zimbabwean Special Permit. The current Zimbabwean Exemption Permits were issued in 2017 and expire on 31 December 2021.

Next Step For ZEP Holders

ZEP holders have been granted a 12-month grace period to change status to a different type of visa, subject to qualifying for an alternative visa category.

ZEP holders may qualify for the following types of visas:

  • Spousal / Life Partner Visa with Work Authorisation (if married or in a permanent relationship with a South African Citizen / Permanent Resident, subject to conditions).
  • Relative’s Visa (if related to a South African Citizen / Permanent Resident who is either a spouse, parent or child).
  • Critical Skills Work Visa (if holder of critical skills as set out in the Gazetted Critical Skills List issued by DHA).
  • General Work Visa (if offered South African employment and approved by Department of Labour, subject to assessment).
  • Study Visa (if enrolled /accepted to take up studies at a registered educational institute in South Africa).
  • Business Visa (where you have your own business and meet the investment and labour requirements)
  • Retired Person Visa (where the applicant has income exceeding R37,500 per month from a pension, irrevocable annuity or other income source)

Should you be affected by these recent changes and require assistance to determine your eligibility for other visa categories, you may contact Xpatweb for a consultation and further guidance on your requirements.

Source: Department of Home Affairs

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Do I Qualify For Permanent Residency In South Africa?

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The Department of Home Affairs (“DHA”) has also announced that it will be opening its doors to permanent residence permit (“PRP”) applications from January 2022. If you are a skilled foreigner on assignment in South Africa, there has never been a better time to apply for your PRP.

Applying for permanent residency is an incredible undertaking. Because it affects not only the applicant but their entire family, it could be the biggest decision of their life. It is important to wrap your head around the finer points before applying for permanent residency.

The advantages to becoming a permanent resident

As a PRP holder you will be able to permanently live and work in South Africa without needing to renew your visa every time it reaches its expiry date. You will have the right to engage in business, own property, study, travel in and out of South Africa, and do all activities that a citizen is permitted to do. You will further be able to apply for a South African national identity card, which is helpful when you need to rent property, buy a car or open a bank account. While a PRP has no expiration date, you must be resident or physically present in South Africa at least once every three years. A permanent resident permit will not jeopardize your citizenship in another country.

Unfortunately, being a permanent resident in South Africa does not entitle you to South African citizenship, which means you will not be able to vote in local elections. Citizenship is an entirely different application process with different requirements. You will also not be able to apply for a South African passport.

Types of permanent residency

There are numerous categories under which to apply for a PRP. As with any other permit, the applicant is subject to the conditions of the chosen category the permit was issued under. For example, if you obtain permanent residency through retirement, then you must prove that you have no intention to work in South Africa. You would also have to prove that you are financially able to retire.

When do you qualify for permanent residency?

You must have lived in South Africa as a worker with five years of continuous work permits before applying for a PRP. It’s important to note that you will never automatically qualify for permanent residency after living in South Africa for five years.

Foreigners might qualify for direct residency in special circumstances where they:

  • Have critical skills or qualifications that are in short supply in South Africa
  • Want to open their own business or invest in an existing business in the country
  • Wish to retire and can prove that they are able to sustain themselves
  • Obtained a permanent job offer in South Africa
  • Is financially independent and does not need to work for a living

Holders of a Critical Skills Visa or a skill/qualification listed on the Critical Skills List, who also have a permanent offer of employment, have a first-mover advantage in seeking appropriate immigration advice. This will ensure that all the necessary steps are taken to submit their PRP application before January 2022, thereby avoiding the long lines.

Spouses, dependents or close relatives

A direct permanent residence permit is obtainable to the spouse or life partner of a South African citizen or permanent resident. They would, however, be required to demonstrate that they have been in a relationship for at least five years, either through cohabitation or a legal marriage certificate.

Legal dependents of a South African citizen or permanent resident, which include children under the age of 18, as well as relatives meeting the first level of kinship, may apply for a PRP.

Application process

Permanent residency can only be obtained through a formal, and sometimes cumbersome, application process, which could take anything from 6 to 12 months before being approved. It should be noted that each application will undergo scrutiny by the DHA. Applicants are vetted and processed impartially to determine whether they will contribute to the South African economy.

Approval is subject to the applicant meeting the prescribed criteria in the Immigration Act. If you are classified as a prohibited person or declared undesirable, you must submit a detailed motivation why you should not be denied approval. In the event where documents are missing or incomplete, the process can be delayed even further.

There are many finer points to consider when applying for a residency permit. For example, it is advisable to be present in South Africa when applying for a PRP. You must never apply for permanent residency when you are in South Africa on a temporary tourism visa.

South African tax: a word of caution

The South African tax system is a residence-based system, meaning your tax obligations will be determined by your residency status. If you are considered tax resident, you are liable for tax on your worldwide income, whereas non-residents are only subject to tax on South African sourced income.

You are considered a tax resident when you are “ordinarily resident” or have sufficient physical presence to trigger residency. In terms of the former, you will be considered resident if objectively viewed you treat South Africa as your real and permanent home. The physical presence test is measured over a six-year period and applies if you are physically present in South Africa for more than 91 days in total in the sixth and previous five tax years and more than 915 days in total during the previous five tax years.

Critically, if you apply for a PRP, you effectively declare that you intend to reside in South Africa permanently, which will trigger residency under the “ordinarily resident” test. Therefore, while permanent residency may appear to be a good idea from an entry standpoint, it may be considered a less favourable choice from a holistic planning standpoint. An immigration specialist with a keen understanding of the fiscal aspects of South Africa, should be able to advise on tax planning as part of their service.

To avoid the potential pitfalls when applying for a permanent residence permit, it is important to seek advice or assistance from an immigration specialist who is well-versed in the South African visa or permit application processes, as well as the South African taxation system.

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The Expat Spouse: Unable To Work While Their Partners Work Abroad

The Expat Spouse: Unable To Work While Their Partners Work Abroad

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Spouses or life partners of expatriates are often referred to as “the trailing spouse” because they followed their partners wherever they went. While the role has long-since departed from being a gender-specific one, there has also been a rise in dual career couples.

According to Marisa Jacobs, Director at Xpatweb Expatriate Solutions, this is a common problem that couples encounter when they find work offshore. “Whether coming into South Africa or working abroad, spouses often do not want to put their careers on hold, which is why they are surprised by the restrictions on their visas.”

The concerns facing partners or spouses of expatriates

If spouses wish to work in the country where their partners are on assignment, they are often required to apply for their own work permit, which is subject to approval from that country’s immigration services. This could mean having their qualifications assessed or first obtaining an offer of employment.

Slow work permit processing times, complex human resources procedures, or foreign immigration services not yet recognising non-married partners or same-sex couples, are some of the hurdles currently being encountered.

This uncertainty could hinder a spouse’s ability to integrate or settle into their new surroundings. It places an additional burden on the relocating family adding to an already stressful life event and assignment pressures.

The concerns facing unaccompanied expatriates

Many couples resort to staying in two jurisdictions, especially where the spouse or partner is unable or unwilling to put their career on hold and will not be able to work in the host country because of visa limitations. However, this too can put a lot of strain on a family.

Besides being separated from their family, the stress of being isolated in a foreign country while your family is so far away, can become unbearable. Frequent travel to visit your family can be expensive and cause some friction with their employers. The inability to adhere to required days in or out of a country, could also have serious tax implications.

“We have seen some governments recognising partners of international assignees and allowing them to work in the host country, especially where the main applicant holds a scarce skills visa to ensure they continue to attract those candidates who the country is most in need of. In South Africa this is however a more far away reality due to the high unemployment numbers. Different strategies are required on a case-by-case basis with some advance planning to assist where spouses are keen to pursue careers while ‘on assignment’,” says Jacobs.

The Permits Foundation Survey

The Permit Foundation, a not-for-profit organisation, has been campaigning to improve work permit regulations for partners of expatriates over the last ten years. Since their inception in 2001, their efforts have contributed to 35 countries implementing legislation to enable dependant work access. With a focus on achieving legislative change at government level, they’ve had a surprisingly favourable response from employers with expats under their employ.

In South Africa the Foundation has been making the recommendation that consideration be given to the issue of access to employment for legally recognised family members of critical skills visa holders and intra-corporate transferees. According to Helen Frew, Director of Permits Foundation, “Particularly in light of COVID -19, the added assurance before the decision to move, that both members of a dual careers couple can work, would help to make a huge difference to employers and mobile families and the experience from other countries shows that there would be no adverse impact on the local labour market.”

The Foundation’s first HR survey conducted in 2011 revealed that 96% of employers agreed that partners of expatriates should be allowed to work in that host country. Many companies are already aware of the concerns expats and their partners are facing, and know they run the risk of assignments being terminated prematurely because of it. As a result, many have started offering dual career support initiatives to promote family-friendly policies or to increase staff mobility and well-being.

Their latest survey is underway and promises to deliver remarkable insight into the challenges faced by expats and their partners. Expatriates and global mobility specialists are encouraged to share their views about mobile spouse and partner work authorisation.

“Permits Foundation’s work is underpinned by a strong evidence base and South Africa is a priority country for the Foundation. To help us highlight the issue of work access going forward, it is very important to us that spouses of international employees participate in our International Dual Careers survey, which runs until end November,” concludes Helen Frew.

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