High Court ruling – Holders of asylum seeker & refugees permits may now apply for the relevant immigration permits and visas

/in , /by

The much anticipated ruling on Immigration Directive 21 of 2015, barring Refugees and Asylum seekers from applying for a change of status to any visa or permit in terms of the Immigration Act, was handed down by in the High Court of South Africa on 21 September 2016. It has been declared that Directive 21 is inconsistent with the Constitution of the Republic and therefore invalid and must be set aside.

The judgement further clarifies that  even  failed asylum seekers must be permitted to apply for a visa by affording them the same opportunity as illegal  foreigners in section 32 where allowing individuals to approach the Director-General  for authorisation to apply for a visa.

Click here for a copy of the High Court Judgement

The Importance of South African Permanent Residency to your Expatriate / Human Resource Strategy

/in /by

The work permit process can be time consuming and even painful, depending on your permit categorisation. One question often asked is whether an expatriate should not consider Permanent Residency application sooner, effectively lifting the expatriate’s status above the noise of normal work permit requirements. We found that there can be a significant upside however, depending on the complexities there may also be adverse consequences.

Why Permanent Residency?

Permanent Residency allows the holder to live and work in South Africa unlimited including the right to work without restriction, engage in business, own property, study and do all things a citizen is permitted to do with the exception of voting in the South African elections. You may only do so once you have been naturalised as a South African citizen. Permanent Residency in South Africa also allows its holder maximum flexibility with regards to entry and exit through the country’s borders. Read more

South Africa Not Renewing Zimbabweans Special Permits – Gigaba

/in /by

The almost 200 000 Zimbabweans currently on permits issued under the Zimbabwean Special Permit (ZSP) project, have to seek alternative permits if they wish to extend their work, study or stay in South Africa beyond 2017, Home Affairs Minister Malusi Gigaba has said.
“Those from Zimbabwe, as we announced last year when we announced the extension until December 2017, will in the meantime, between now and December 31st of 2017, have to regularise themselves in South Africa by applying for other permits and visas which are provided for in the Immigration Act,” Gigaba told reporters in Rustenburg in South Africa.
“The special Zimbabwe dispensation cannot exist forever. We therefore have to move towards a phase where we regularise them by ensuring that we provide them with visas in terms of the Immigration Act, and not through special arrangements.” Asked what would happen to the Zimbabweans based in South Africa if they have not attained other permits by December 2017, when their special dispensation permits expire, Gigaba said he wouldn’t speculate over the matter. Read more

Start-up visas: Countries draw top talent

/in /by

A growing number of countries determined to attract entrepreneurs to their soil are handing “start-up visas” to the best and brightest of them.

A start-up visa enables entrepreneurs to live and start businesses in countries where they are not citizens or permanent residents, for a defined period of time.

According to global entrepreneur network Startup Nations, at least a dozen countries now have start-up visa programmes. These include Australia, New Zealand, Singapore, the UK, Ireland, France, Spain, Italy, the Netherlands, Denmark, Canada and Chile. Startup Nations’ network continues to grow, and is expected to add the likes of Argentina, Poland, Norway, the Dominican Republic and Estonia, which plans to implement a start-up visa programme in January. Read more

Validity period of visas now solidified

/in /by

Effective 1 August 2016, visas will be issued with a “Valid From” date instead of an “Issue date” which will accurately calculate the expiry dates of visas. This is an issue that has been plaguing expatriate employees. The time employers have previously spent on correcting visas to ensure correct expiry date will no longer be necessary.

Directive 19 of 2016 was issued by the Department of Home Affairs to this effect.

Click here for a copy of the Directive

Department of Home Affairs Launches Inaugural Naturalization

/in /by

The Department of Home Affairs will host an inaugural naturalization in honour of foreign nationals residing in South Africa. In this ceremony applicants who have been permanent South African residence holders for a period of 10 years will be formally awarded certificates, while they will be expected to take an oath affirming their allegiance to the Republic of South Africa. The function will take place in the East Rand later Wednesday.

Introduction of The Lesotho Special Permit

/in /by

Earlier this year Gigaba introduced the Lesotho Special Permit (LSP). It was indicated that the introduction of the permit was largely influenced by the “success” of the Zimbabwean special permit project, and is aimed at regularising the status of Basotho nationals in South Africa. The scheme will ensure that Lesotho and South African Governments have the biometric data of the individuals in question available to them, and thus equates to free movement between the countries.  Although exact figures are not known, Basotho authorities have previously indicated that there are in excess of 400,000 Basotho nationals residing in South Africa.

Please note that all LSP applications must be submitted before 30 September 2016.

Click here for more information.

Permanent Residency for Graduates

/in /by

In the past months the Department of Home Affairs indicated that graduates of South African universities will soon be able to apply for Permanent residency, providing that they have completed their studies in “critical skills areas”. This aims at putting the skills and knowledge that the graduates have obtained from South African universities to good use in South Africa, and opens the way for international students to work or start a business in South Africa after graduation.

Working in South Africa: The Tax & Fiscal Implications

/in /by

South Africa is one of the expatriate jurisdictions where proactive planning makes a significant difference to the tax and exchange control implications of an international mobile employee. The primary reasons are:

  • Unlike most other countries, with good planning, you only become ‘tax resident’ in the beginning of your sixth year in South Africa; and
  • There are various tax provisions which provide specific tax relief for expatriate employees, as well as various South African Revenue Service (SARS) practice notes and binding rulings that gives additional relief.

Typical mistakes you should avoid:

The following are examples of things that may sound like a good idea, but, from a South African tax perspective, is not:

  • Open ended contracts and applying for permanent residency too soon. These are examples of items which SARS and the South African Reserve Bank often use to determine whether you have an intention to reside permanently in South Africa thus making you ordinarily resident and therefore, tax resident in South Africa. Not only will you then be liable to tax in South Africa on world-wide income, but you will also be subject to South African exchange control regulations. We have in recent months defended expatriates who SARS held to be tax resident in South Africa on the basis of an open ended employment contracts. Good planning would be entering into a fixed term contract with the option to renew.
  • Housing or accommodation related allowances are never good ideas because they are fully taxable with no tax relief. Company provided accommodation either directly or through outsourced provider qualifies for various exemptions.
  • Expatiates based in South Africa but who travels internationally qualifies for various exemptions. Whilst the principles are complex and there is no ‘one-size –fits-all’, it dates back to 1946 and states that days worked outside South Africa by a non-resident is exempt from South African tax.

A word of caution:

Whilst South African tax law has favourable provisions for expatriates, SARS has a dedicated audit focus on expatriates, for example, in the SARS standard payroll questionnaire, there is an entire section dealing with expatriates to ensure correct treatment and to identify abuse of favourable provisions.

The rule of thumb is that the employment contract or secondment agreement should be optimally structured from a tax perspective. This must be done before the work permit application.

Information provided by www.taxconsulting.co.za

South African VAT, Foreign Companies & Employees

/in /by

Foreign companies often need to send employees to South Africa for execution of local contracts or to assist South African group companies for various reasons. While South African income tax considerations, permanent establishment concerns and double tax treaty provisions are often considered in detail, the South African VAT (or ‘goods and services tax’ as it is known in many other jurisdictions) consequences are hardly ever taken into account.

South Africa, unlike many other countries in the world, does not have specific place of supply rules. Rather, South African VAT is collected through the vendor registration method or the reverse charge mechanism for imported goods or services. In this article we will focus on the vendor registration method and the possible registration obligation for foreign companies consequent upon employees operating in South Africa.

The vendor registration method:

The vendor registration method requires of any person (whether local or foreign, resident or not resident) to register for VAT in South Africa if that person carries on an enterprise for South African VAT purposes with past or expected sales exceeding ZAR 1 000 000. Such registration gives rise to regular reporting obligations to the South African Revenue Service (SARS) and failure to report where an obligation to do so exists gives rise to penalties and criminal sanctions.

An enterprise will be carried on for South African VAT purposes if a person conducts any activity in South Africa on a regular or continuous basis and in the course of furtherance of that local activity sells either goods or services. What exactly constitute a continuous or regular activity in South Africa for South African VAT purposes is not entirely clear under South African law and each case needs to be considered on its own facts. SARS have, however, expressed a formal view that short bi-monthly visits to South Africa by more than one employee of a foreign company is sufficient to trigger an obligation on a specific foreign company under consideration to register for South African VAT and report to SARS. Similarly, SARS have expressed a view that short training sessions provided in South Africa on software products of a specific foreign company under consideration by employees of that foreign company is likely to trigger a registration obligation under the vendor registration method and concomitant reporting obligations.

Foreign companies sending employees to South Africa should take care to consider South African VAT implications and are advised to seek advice in respect of same. South African VAT implications are not driven by the existence or otherwise of a permanent establishment in South Africa or any South African income tax obligation. In fact, it often occurs that a foreign company has no South African income tax obligation but indeed has a South African VAT obligation.