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South African Immigration Regulation Revision on the Horizon

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South African Immigration Regulation Revision on the Horizon

Impending immigration law shake-up could greatly impact foreigners looking to visit, study and live in the country

UPDATE: The new South African immigration laws have come into law. Find out more about the official changes here. 

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After years of threatening, the Department of Home Affairs (DHA) is making a pointed effort to push through regulatory change that could have major repercussions for foreigners looking to visit, study, work and live in South Africa. While the DHA initially hoped to have the regulatory changes implemented, the process of approval has been hamstrung by public comment feedback, and thus a final date for implementation has yet to be confirmed.

The thinking behind the revision is to update the law to be on par with an international standard, and while nothing has been set in stone just yet, amendments tentatively affect business permit holders, work permit holders, those on spousal visas, those on tourist visas and more. If passed, the changes will be the first major adjustments since 2004.

So what exactly are the proposed changes?  Well, we had to chat with Black Pen Immigration, who specialise in South African immigration law, to find out the details. 

Processing:

  • First-time visa applications will need to be made from your home country.  So this means that you can no longer enter the country on a particular type of visa, like a tourist visa, and apply for a different type of visa, like a work permit, once you are in South Africa. 
  • All visa applicants will have to present themselves in person when making a visa application and cannot be represented by an agent or attorney. This rule will apply to both first-time and repeat applicants lodging applications locally and abroad. Agents and attorneys can, however, follow up on an application once it’s been submitted.
  • The submission of visa applications will be managed by the so-called Visa Facilitation Services (VFS). This body will replace local and regional DHA offices and will receive applications, scan them and forward them to the national DHA in Pretoria. The advantage of this is that applications will not be lost so easily and, hopefully, will be processed more efficiently. But, as with most things, an added service means an added price, so the application fees will rise.
  • VFS offices will also set up a VIP area and a faster processing option, both of which can be utilised for a fee.
  • Applications will need to be submitted in full with ALL documents. Until now, you could submit the police certificate at a later date, but this will no longer be possible; the DHA makes it clear that all incomplete applications will be rejected immediately.
  • While visa renewal can still be done in South Africa, the application will need to be delivered in person by the applicant to one of the planned VFS offices. 

Staying illegally in the country:

  • In the past, if your visa has expired you would have to pay a fine upon departing the country.  The new regulation proposes that even a once-off offence could mean being declared persona non grata (an unwelcome person) for between 2 and 10 years.
  • Previously, Immigration Directive no. 43 stated that you could remain in the country without a valid visa as long as a submitted visa application was being processed. This directive will no longer be valid, and therefore it is vital that the new visa is approved before the current one expires.
  • Applications for an extension or change to a visa must be done 30 days before expiry.

 Tourist Visa:

  • For citizens of many foreign countries, a 90-day tourist visa is issued on arrival. In past, you could extend this visa relatively easily for another 90 days. Upon approval of the new regulations, it will be more difficult to extend because it will become necessary to present a police clearance certificate from South Africa and your homeland as well as a valid reason for the extension.
  • Visas (e.g. tourist) will in future be called “port of entry visas and transit visas”

 Life Partner Permit:

  • You will need to prove five years of cohabitation before you can apply for a temporary Life Partner Permit (LP permit).
  • Proof of cohabitation can be in the form of a lease agreement or a bond payment. At this stage it is uncertain if, once issued, the applicant needs to wait another five years before qualifying for permanent residency or if the applicant can apply for both permits at the same time.
  • Previously, foreigners applying for the LP permit had to be accompanied by their partner when they went to the DHA to submit the application. The new Immigration Act of South Africa suggests that both partners will be interviewed at the same time in separate locations so that the authenticity of the relationship can be assessed.
  • If the new regulations come into play, holders of LP permits that are due for renewal and have lived with their partner for less than five years must marry their partner or apply for another type of visa if they wish to remain in the country legally.

 Study Permit:

  • Study Permits will only be issued for students at universities, colleges and high schools.
  • Permits for those looking to study at language schools and other training facilities, like a kite surfing school, will no longer be issued

 Business Permit:

  • The previous minimum investment requirement of R2.5 million will be nullified. So far no replacement sum has been published. Rumour has it that the investment requirement could be as much as R8 million.
  • If the changes are adopted, those holding a South African business permit must prove that 60% of their total workforce is South African.
  • A recommendation from the Department of Trade and Industry will be required for each application.
  • There will also be a list of “undesirable businesses”, for example strip clubs.

 General Work Permit:

  • The employer will need to more pointedly prove that the person needed for a specific position could not be found in the South African workforce.
  • The Department of Labour, a body known for its inefficiency and cynical take on granting local jobs to foreigners, will play a larger role in the approval of this visa.
  • You will no longer qualify to apply for a permanent residence visa simply by holding the same work permit for five years. 
  • Temporary residence permits will in future be called “visas”.

Exceptional Skills Permit:

  •  Both the Exceptional Skills and Quota Permit will be completely eliminated and replaced by the Critical Skills Permit. This means that you can no longer apply for a visa as a result of exceptional ability; rather, your skill/ training must be in demand in South Africa. The government will release a list of what skills are in demand.
  • The list of in-demand critical skills has not yet been made available.
  • Holders of Exceptional Skills and Quota Permits cannot have their permits extended and must apply for a Critical Skill Permit or General Work Permit.

 Retirement Permit:

  • Applicants will no longer need to prove a minimum monthly income of R20, 000 per person from a source other than work.
  • While there will still likely be an application fee, the amount has not been confirmed.
  • Should a couple apply, the spouse will automatically be included in the application and will not have to submit as an individual.

 While the proposed changes have generally caused widespread panic amongst foreign nationals, some advantages have also been highlighted, the most prominent relating to the rising issue of child trafficking.  The changes will reportedly uphold stricter requirements for children travelling without their biological parents. Furthermore, adults travelling with children who are not their own will need affidavits from parents to grant permission for the children to travel.

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