The Department of Home Affairs (DHA) builds on the recent win of the implementation of the Trusted Employer Scheme (TES) by publishing draft changes to the Immigration Regulations for comment by 29 March.
Marisa Jacobs
Managing Director
Benjamin van Zyl
Immigration Support, Admitted Attorney
These changes implement a number of the Operation Vulindlela recommendations which aims to improve immigration legislation.
Noteworthy changes include –
One of the suggested amendments will enable a foreign national to work remotely in South Africa for a foreign employer. This is a popular new visa category globally with countries like Portugal, Mauritius, Namibia and many more introducing a nomad / remote work visa in the last four years to attract expats to these countries and which is expected to have a positive impact on the economy. South Africa has seen a number of proposals to implement a similar category and when President Ramaphosa announced that it would be introduced in South Africa during his SONA address in 2023 there was much excitement.
The draft legislation proposes implementation of a remote work authorisaton for foreigners earning no less than R1,000,000.00 per annum.
The legislation changes in 2014 introduced a new requirement under several categories, but most notable the Critical Skills Work Visa category, for applicants to register with a South African Qualifications Authority (SAQA) recognised Professional Body.
This has been a headache for many as the registration process is out of the control of the DHA and in many instances the professional bodies have themselves put in place cumbersome requirements and long processing times to approve membership.
This makes it difficult for the Critical Skills Work Visa category, that aims to attract talent by “pre-approving” certain occupations, to mobilise these skills.
In the draft changes currently open for comment, the DHA proposes amendments that draws a distinction between proof of application for a certificate of registration with the relevant professional body, council or board recognised by SAQA, on the one hand, and proof of a certificate of registration as such, on the other.
In the event of only being in possession of proof of application for a certificate of registration, the relevant visa will be issued for a period not exceeding 12 months. However, if the applicant is in possession of proof of a certificate of registration, the critical skills work visa may be issued for a period not exceeding 5 years.
The amendments also introduce a points-based system according to which all work visas will be adjudicated, and which points-based system will be determined by the Minister of Home Affairs by notice in the Government Gazette. In determining this point-based system, the Minister may consider criteria such as age, qualifications, language skills, work experience, offer of employment and the ability to adapt with South Africa.
This is a welcome development, although it is still not clear what this points-based system will encompass, but we look forward to further developments in this regard to be announced by the Minister in the Government Gazette.
A further amendment brings into law the recent changes from April 2023 communicated by a Circular, relaxing the requirement for Police Clearance Certificates which is now only required from foreign nationals 18 years or older who have resided in a country for 12 months or longer in the last 5 years immediately preceding the date of the application for a visa, which certificate may not be older than 6 months at the time of submission. In the case of renewal or extension applications for a visa, only a Police Clearance Certificate of South Africa is required.
Previously all certificates since the age of 18 was required which was a cumbersome process for many expats who have spent their career working globally.
As far as the requirement of submitting a radiological report along with a visa application is concerned, this has been done away with.
Two recent judgments of the Constitutional Court gave rise to further suggested amendments pertaining to foreign spouses or children of South Arican citizens or permanent residents.
In the Nandutu judgement, the Constitutional Court found that requiring foreign spouses or children of citizens or permanent residents to leave South Africa to apply for a change of visa status is unconstitutional, as it unjustifiably limits the rights to dignity and the rights of children. The Nandutu judgment necessitated the changes in Regulations which now allows spouses and children to change status of their visa in South Africa.
In the Rayment judgement, the Constitutional Court found that to require a foreign national who is the holder of a visitor’s visa issued in terms of section 11(6) of the Immigration Act, 2002 (Act No. 13 of 2002) and a parent of a child who is a citizen or permanent resident of the Republic and currently fulfilling his or her responsibilities to that child, or demonstrates an intention to do so, to cease working or leave the Republic as a result of the deterioration of that foreign national’s good faith spousal relationship with the citizen or permanent resident, is unconstitutional. The Constitutional Court held further that it is also unconstitutional to require a foreign national who is the parent of a child who is a citizen or permanent resident to leave the Republic in order to apply for a new visa.
These two categories have now specifically been provided for in the suggested amendments to the Immigration Regulations, thereby giving effect to these orders of the Constitutional Court.
The DHA has made valuable amendments to support businesses and individuals relocating to South Africa. Important changes, such as provisions for remote work, a points-based system, and reconsideration of requirements like police clearance and radiological reports, demonstrate a forward-thinking approach. Addressing Constitutional Court judgments on family status changes reflects a commitment to upholding constitutional rights. As the public engages with these proposals, it’s clear the Department of Home Affairs seeks input for a collaborative refinement of immigration policies. As such, we urge all relevant stakeholders to submit comments by 29 March 2024, to shape South Africa’s immigration landscape.
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