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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Newsflash: Department of Home Affairs Approves First Companies for Trusted Employer Scheme

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The Trusted Employer Scheme, introduced in the wake of President Ramaphosa’s 2023 State of the Nation Address, is poised to set a new era for South Africa’s immigration process, particularly for large employers and investors. Its primary objective is to create a more predictable and efficient system that attracts top-tier talent and foreign investment to the nation.

One of the defining features of the Trusted Employer Scheme is its stringent qualification criteria, which ensures that only the most reputable and reliable companies gain access. This select list of companies will enjoy a streamlined and expedited immigration process, ultimately benefitting South Africa’s economic growth and stability.

The scheme promises several key benefits:

  1. Efficiency: The Trusted Employer Scheme aims to simplify and streamline the immigration process, reducing the bureaucratic hurdles that have hampered employers in the past.
  2. Reduced Documentation: With a focus on trust and reliability, the scheme will require less extensive documentation from participating companies, making the process smoother and more efficient.
  3. Accelerated Processing Times: Companies approved under the Trusted Employer Scheme will experience significantly faster and more predictable processing times for immigration-related matters, reducing delays and enhancing operational efficiency.

Over the last 24 months, the Department of Home Affairs has faced numerous challenges in managing immigration-related processes. The Trusted Employer Scheme represents a bold step forward in addressing these issues, offering a solution that benefits both employers and the South African government.

As the Trusted Employer Scheme commences, many businesses eagerly anticipate the opportunities it will bring. This initiative promises to strengthen South Africa’s position as an attractive destination for talent and foreign investment, setting the stage for an exciting new chapter in the nation’s economic development.

All applicants are expected to receive feedback between 19 and 26 January. We at Xpatweb look forward to being an integral part of this initiative and pledge our support to both the Department of Home Affairs and Trusted Employers as they navigate this exciting new chapter in South Africa’s immigration landscape.

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The Department of Home Affairs extends blanket concession until 30 June 2024 ftin

The Department of Home Affairs extends blanket concession until 30 June 2024

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This decision is communicated just 9 days before the expiration of the previously granted extension. The delay in the announcement had left many nervous, as many feared that they would have been required to depart South Africa by 31 December 2023.

The Directive issued by the DHA introduces the below measures with immediate effect:

1. For foreign nationals awaiting outcomes on their waiver applications:

Visa holders with pending waiver applications as at 30 November 2023, will receive a temporary extension until 30 June 2024. This extension allows the DHA to process their applications and enables applicants to receive their decisions and apply for appropriate visas. Visa holders who need to travel but are awaiting the outcome of a waiver application, will be allowed to exit and re-enter South Africa at a port of entry up to and including 30 June 2024, without being declared undesirable. However, applicants from countries that are not visa exempt who travel out of South Africa with a waiver application receipt, are required to apply for a port of entry visa which would allow them re-entry into South Africa.

2. For foreign nationals whose visa applications are still pending:

 Long-term visa holders (for work, business, study, relatives, and accompanying spouses) whose applications remain pending as of 30 November 2023, will be granted a temporary extension until 30 June 2024, meaning maintaining their current visa status. However, these foreign nationals are restricted from engaging in any activities beyond those permitted by their existing visa conditions. Visa holders who need to travel but are awaiting the outcome of a long-term visa application, will be allowed to exit and re-enter South Africa at a port of entry up to and including 30 June 2024, without being declared undesirable. However, applicants from countries that are not visa exempt who travel out of South Africa with a long-term visa application receipt, are required to apply for a port of entry visa which would allow them re-entry into South Africa.

3. For foreign nationals whose appeal applications are still pending:

 Visa holders who have appealed a negative decision on an application for a long term visa will receive a temporary extension until 30 June 2024. Visa appeal applicants who need to travel but are awaiting the outcome of an appeal application for a long-term visa, will be allowed to exit and re-enter South Africa at a port of entry up to and including 30 June 2024, without being declared undesirable. Applicants from countries that are not visa exempt who travel out of South Africa with an appeal application receipt, are required to apply for a port of entry visa which would allow them re-entry into South Africa. All appeal applicants are required to produce a copy of the rejection letter with a receipt for the appeal application on departure and re-entry into South Africa.

4. For short-term visa holders with visas valid for less than 90 days:

Short term visa holders who have applied for a renewal of their visa but have not receive the renewal outcome by 23 February 2024, will be required to make the necessary arrangements to depart from South Africa on or before 29 February 2024. The above measures only apply to foreign nationals that have been legally admitted into South Africa and who have submitted an application via VFS Global on or before 30 November 2023.

This decision is communicated just 9 days before the expiration of the previously granted extension. The delay in the announcement had left many nervous, as many feared that they would have been required to depart South Africa by 31 December 2023.

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

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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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