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Immigration

- Featured article by LAWYERS-ONLINE.CO.ZA

The new South African Immigration law

In a recent change to South African immigration policies, especially for people who want to apply for a Work Permit while already in South Africa, things are changing. Especially regarding Visitor Permits with permission to work (S 11(1) with permission in t erms of S 11(2)).

Repeat use of this type of permit, where the person could have applied for a full work permit, will not be permitted; People seeking an extension to and 11(2) once inside the country may NOT do so anymore but must leave and apply for a work permit from abroad.

People currently on these permits will not be allowed to change to other permits and must leave the country on expiry of the permit and apply for changes to other permits, from abroad;

However, some people have asked that although these poles have been introduced, the law still states that these conditions cannot override existing law and regulations that means where the law states that a person may extend once within the country, they should be allowed to do so. Furthermore, repeated use of these permits is not restricted by the legislation, and in some cases foreign experts are required for short inputs of typically 2 - 12 weeks within 1 - 5 years cycles, for work purposes or other. South Africa’s current immigration laws allow a change of status condition to (another permit) while the person is on a valid temporary residence permit.

The Department will require foreign nationals to apply in person for visas and not through the proxy of Immigration practitioners. Visas and other documents will no longer be issued to applicants the Department has not physically seen.

Applicants who want to use the advisory services of Immigration practitioners are welcome to do so. Practitioners may continue to consult and provide advice to foreign nationals on immigration matters.

The proposed legislation also outlines the way in which holders of section 23 visas – those issued to foreign nationals who wish to apply for asylum in South Africa when they enter a port of entry – may apply for asylum.

Such asylum seekers are currently required to present themselves at their closest Refugee Reception Office within 14 days of entering the country. They will now have five days to do so.

Immigration officials will also have to follow prescribed procedures to ensure that fugitives from justice and other questionable persons are not issued with such a visa.

The Department is to prescribe the investment categories for which business visas may be issued. The Minister will be required, from time to time to publish a list o f which sectors have been identified for investment.

A new permit called the Critical Skills permit is to replace the existing Exceptional Skills and Quota Work permits. The Department will be required to publish a list of skills which the economy requires.

Amendments to the Refugees Act and the Immigration Act, 2002, are far reaching and will have a profound effect on the way permit and visa applications can be made, the qualifying criteria and period of stay. The amendments were expected to be in place during the first 6 months of 2012 but as yet they are not in official operation. That said, some consulates and embassies are already working to these proposed changes.

One of the major proposed changes to the immigration law is the application process where a change of status takes place. Currently foreigners can travel to South Africa as a visitor and then apply from inside the country for the appropriate permit. The new Act will prevent this meaning a person cannot travel into South Africa as a “visitor” a nd then apply for a permit.

The Department of Home Affairs felt that applications made this way were misleading at point of entry, when the foreigner knew their purpose for entering South Africa was in reality, for example work and not that of a tourist.

Another area effecting workers would be the proposed changes to the business visa. Currently residents of visa exempt countries can enter South Africa and obtain a business visa at the airport by presentation of a letter from their offshore employer. This special type of visitors visa was designed for people such as tour crews, movie crews, performing artists and the like, who had legitimate short terms business in South Africa.

Due to the relative ease of obtaining a business visa it was / is widely abused. Even to the point where many individuals have misused it simply by leaving and entering the Republic every 3 months in order to get a new visa and avoid having to obtain proper work permit. The Department of Home Affairs views such practice as immigration fraud.

This process would enter whereby an application would have to be made at a South African embassy or consulate with adequate motivation.

The requests would be approved in writing and the employee would have to submit the approval upon entry to South Africa. Extension to the visas would not be permitted.

Date: 3rd July 2014

The new South African Immigration law

 

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