The Draft Immigration Regulations, published for comment on February 17, are likely to impede the economic growth of the country by creating “massive” inconvenience for investors and applicants, leading to a loss in new investment and much-needed foreign skills, migration specialist Global Migration South Africa MD Leon Isaacson has cautioned.

Apart from only offering a “patchwork solution” to a range of largely “operational” issues within the Department of Home Affairs (DHA), he asserted that there were a number of flaws in the draft regulations, which violated the country’s Constitution and could be the cause of high-level litigation in the future.

“Most prominent of these issues is the new provision with respect to foreign spouses, who will have to prove a ‘five-year’ relationship before making applications, contrary to the earlier Constitutional Court judgments for similar cases,” Isaacson said in a statement on Tuesday.

The draft regulations perpetuated an “incorrect interpretation” of the legislation with respect to spouses, by requiring these applicants to apply for relative's permits, which were only intended for applicants who were blood relatives.

There were no requirements for spouses accompanying South African citizens and permanent residents, which Isaacson considered a “serious omission” that created uncertainty as to how an application was to be lodged.

Further, the appointment of a private service provider to manage the DHA front offices was also likely to be a problem, as the company would charge additional fees for services as a “monopoly operator without the legislative backup”.

“It is understood that the service provider appointed by the department to manage the immigration offices will be charging service fees to the public, which is not permitted in the regulations and is also unconstitutional,” Isaacson held.

Under the new level of bureaucratic administration, he maintained that, for a General Work Permit, applicants would endure a “cumbersome” process to obtain a certificate from the Department of Labour (DoL) indicating that they had complied with a list of requirements.

“Concerns have been raised that this is likely to be too drawn out for most investors, owing to the [in]capacity of the DoL to implement a speedy and efficient process,” Isaacson noted.

Under the proposed regulations, the Corporate Permit application process, which, according to Isaacson, had been problematic since the DoL “unlawfully imposed requirements outside of the current legal framework”, would be worsened by only two sectors – mining and construction – having specific requirements.

In addition, the “scarce skills” list had not been published for comment, leaving most economic sectors uncertain as to what skills may be included.

The elimination of advocates, lawyers and practitioners followed on the DHA’s “unconstitutional” view that applicants did not require representation.

In addition, the draft regulations failed to include transitional provisions for people who were on one type of permit under current law and may need to apply for an extension of their stay in South Africa, assuming a legitimate purpose.

Isaacson expected this to cause “continuity issues” with respect to existing skilled personnel.