While some relaxation of certain aspects of the new immigration regulations, which were introduced on May 26, was expected, foreign companies operating in South Africa were still left with immediate challenges, law firm Edward Nathan Sonnenbergs (ENS) immigration unit director Zahida Ebrahim said on Thursday.
Speaking at a breakfast meeting hosted by the French-South African Chamber of Commerce and Industry, in Johannesburg, she noted that the immigration regulations and the amendment to the Immigration Act, which came into effect abruptly, had resulted in “a bit of mayhem”.
“One must recognise that you are not only dealing with the changes to the regulations at the moment. Aside from the [proposed] changes, what I am seeing in practice as giving rise to huge difficulties, is the ad hoc implementation and withdrawal of various directives that the Department of Home Affairs (DHA) has issued,” she said.
Ebrahim explained that the implementation and withdrawal of these directives was complicating the predictability of how things will unfold and was causing uncertainty.
“The directives issued actually have no legal binding power; however, I suspect that these directives may be our saving grace down the line. The department is going to have to issue directives on certain issues that are not working in practice to make those issues work and to alleviate the difficulty caused by the regulations as they are currently worded,” she stated.
Newly appointed Home Affairs Minister Malusi Gigaba earlier this month also indicated that the new regulations could still be amended should they prove to be a constraint on the economy, or too onerous to administer.
According to Ebrahim, the main directive that was adjusted and, in effect, now withdrawn, was directive 43, which related to travel while a work permit application was still pending.
This directive determined that persons who have a work permit application pending could travel should they have a receipt stating that the application has been submitted to the DHA.
“Directive 43 was withdrawn and foreigners are now no longer able to travel while they have an application pending if their visas have expired,” she said, explaining that persons who do travel with a pending application would be declared undesirable persons upon exiting the country.
This was especially troublesome as many applications were often delayed at the DHA despite having been submitted within the prescribed 60-day-to-expiry period and, therefore, government was, in effect, acting against visa applicants when they themselves, as government, failed to deliver an outcome timeously.
“Nonetheless, that is where I see developments taking place in terms of directives being issued. Already there is talk of litigation. I understand that there are High Court cases set down and so we may find that case law changes the implementation of this regulation somewhat as well.
“We may see some changes quite urgently as my understanding is that what has been set down are urgent interdict applications,” she said.
She also pointed out that persons who had been declared undesirable for this reason, and through no fault of their own, could appeal their status.
Ebrahim said government had, to date, seemed willing to process these appeals and was processing them rather quickly. She pointed out, however, that, despite the effectiveness of the appeals process, persons affected by this still had the practical difficulty of having to appeal.
She further noted that the DHA’s response to this issue seemed to be that they were accelerating their visa processing timelines, thereby ensuring that visas were granted quicker, adding that she did not expect to see a relaxation in terms of declaring persons undesirable.
Meanwhile, the removal of exceptional skills work permits from the Act, was unfortunate, Ebrahim stated.
The previous quota work permit and exceptional skills work permit catagories were repealed and replaced by a single critical skills work visa category under the new Act.
Ebrahim noted that, while the exceptional skills work permits had been abused in the past, they were useful for highly skilled people particularly in the consultancy space.
Therefore, ENS had suggested, prior to the amended Act coming into force, that government, instead of repealing the permit category, rather introduce additional measures, such as considering years of work experience, to make the screening process more subjective and reduce the chances of the permits being abused.
However, government had decided against taking this route.
A further potential challenge posed by the new regulations related to corporate visas which were issued to corporate applicants to employ a number of foreigners for a period not exceeding three years, after proving the need for employing foreigners.
According to the new regulations, at least 60% of these companies’ employees still had to be South African, which presented a challenge to foreign contractors who often had a 100% foreign employee staff complement.
Meanwhile, Ebrahim pointed out that the DHA was training its passport control staff with regard to implementing these new regulations; however, she questioned the line taken in these internal workshops and how dedicated the department was to creating a business-friendly visa dispensation.
She was seeing a stricter enforcement of regulations with no latitude; however, she expected this to settle over time.