The newly gazetted immigration rules have caused a stir amongst all South Africans. It has been deemed unconstitutional and has not been accepted without opposition. There is also a great deal of confusion surrounding the new laws.

Below we look at how the process has changed as well as the major issues surrounding these changes.

Applying for Visa/Permits

• The Department of Home Affairs (DHA) has officially outsourced the handling and processing of visa applications to a company called Visa Facilitation Services (VFS).

How Will the VFS Process Applications?

• The VFS will be opening 11 offices, which will be referred to as Visa Application Centres (VACs), around South Africa beginning on 2 June 2014.

• At the VACs, applicants will submit their applications and biometric data for processing.
• Once the applications have been thoroughly checked, they will then be scanned and forwarded to the Head Office of Home Affairs in Pretoria.

• The VFS will operate strictly as a processing operation and will not offer potential immigrants any advice on immigration rules etc.  Therefore, prospective immigrants will still have to seek advice from immigration consultants, and the consultants will be able to accompany applicants.
• Zimbabwe nationals on Special Dispensation for Zimbabweans Project, Asylum and Refugee cases will still be directly handled by the Department of Home Affairs.
• The VFS does not have the authority to grant or refuse visas as that decision still lies with the DHA.
• The VFS will charge an additional service fee of R1350 incl. VAT per application. (Do note that this amount excludes the standard DHA application fee.)
• Submission timings are between 8am and 4pm (Monday to Friday)

Following is an outline of the key issues surrounding the major rule changes: 

Life Partner and Spouse Visas

Initially, government wanted proof that spouses or life partners have been together for at least 5 years before an application for a permanent or temporary residency could be made. This has since been changed to 2 years.

Issues arise when changes or extensions have to be applied for – with certain applications only eligible if done from the person’s original country of residence.

If a partner or spouse was in a previous marriage, it is necessary to provide official documents that prove the dissolution of such marriage either by divorce or the death of the other spouse.

The updated regulations also state that life partners will need to attend separate but simultaneous interviews to determine the authenticity of the existence of their relationship.

Changing Visa Status while in South Africa

Visitor’s Visa holders who wish to change the terms or status of their visa must submit an application no less than 60 days prior to the current visa’s date of expiration.

Those wishing to extend a stay for longer than three months must provide a police clearance certificate from their home country.

New regulations also state that one cannot change from a Visitor’s Visa to another type of visa; these applications for change of conditions must be made at a mission abroad, i.e. an embassy or consulate, where the applicant is an ordinary resident or holds citizenship.

Under the “old legislation”, it was possible to apply for a temporary residence permit whilst using a visitor’s visa but the “new legislation” now prohibits any foreigner from applying for a temporary residence permit using a visitor’s visa.

Those who are using a visitor’s visa in South Africa would now need to leave and apply in their own country of residence.

If a person’s visitor visa has expired, they would need to seek legal advice about exiting South Africa as immigration officials have been advised to ban any foreigners for overstaying – by making them an undesirable person for 1 year, 2 years or 5 years.

However, exceptional circumstances include if an applicant is in need of life saving medical treatment or is an accompanying spouse or child of a business or work visa holder who wish to apply for a study or work visa.

General Work Visa

Applications for this visa will have to include a certificate from the Department of Labour confirming the following:

• despite a thorough search, the prospective employer could not find a South African employee with the skills and experience equivalent to those of the applicant.
• the applicant has proven skills and experience in line with the job offer.
• the salary and benefits of the applicant are not inferior to those of citizens or permanent residents.
• the contract signed by both the employer and applicant stipulates conditions that are in line the labour laws of South Africa.

You will also need a document to prove that your qualifications have been approved by the South African Qualifications Authority (SAQA). This document must be translated into one of the official languages of South Africa by a sworn translator

The work visa will be valid for a maximum of five years.

Business Visas

This visa sees a more forensic approach in the new application process. Businesses will now need to get a recommendation letter from the Department of Trade and Industry (DTI) and business visas will only be granted for 3 years at a time.

The DTI will conduct a thorough and forensic assessment of the feasibility of the business entity as well as the contribution to the national interest of South Africa.

Experts fear that this assessment could cause major delays in the process.

Any accountant registered with the South African Institute of Professional Accountants or the South African Institute of Chartered Accountants can verify the availability of funds for a business visa.

60% of the business owner’s workforce must be South African or must be permanent residents employed in various positions.

Critical Skills Visa

This visa will replace the Exceptional Skills and Quota Visas.

The introduction of this visa has not been made clear and there is no official list of what exactly constitutes a scarce skill; meaning, at this moment in time, it’s actually not possible to submit an application within this category.

Current Exceptional Skills and Quota Permit holders will not be able to renew their permits going forward.

Intra-Company Visas

This visa will now be available for 4 years but is non-renewable.

The employee in question must be employed with the foreign office/ business for a minimum of six months before being eligible for transfer to South Africa.

Asylum Transit Visa

An Asylum Transit Visa issued at a port of entry will be valid for a period of 5 days to enable the holder to report at a nearest Refugee Reception Office.

Study Visa/ Exchange Visa

Holders of a Study Visa may not conduct part-time work exceeding 20 hours of labour a week.

Both Study and Exchange Visas will only be issued for the duration of the study period or exchange programme respectively.

An exchange visa (for persons under 25 years) will not be granted to conduct work pertaining to an undesirable work as published by the Minister in the gazette, after consultation with the Minister of Trade and Industry.

Retirement Visa

An application must be accompanied by a police clearance certificate.

Applicants will no longer need to prove a minimum monthly income of R20, 000 per person from a source other than work; rather, the sum will still be determined by the combination of assets realizing, per month, determined from time to time by the Minister of Labour.

Fines

There has also been a massive increase in the administrative fines to be issued to those who overstay and any other persons who are in contravention of the act.

In addition, if a visa has expired foreigners face a ban labelling them an undesirable person for 1 year, 2 years or 5 years.

New travel regulations for children

In addition to these major changes to the Immigration law, child travellers (anyone under the age of 18) require additional documentation when travelling.

Children travelling with both parents have to produce an unabridged birth certificate with the names of both parents.

A child travelling with only one parent has to supply either an affidavit from the other parent giving them consent to travel, a court order indicating guardianship, or the death certificate of the other parent.

If a child is travelling with people not their parents, they need to provide affidavits from their parents or guardians, copies of the parents’ or guardians’ identity documents or passports and their contact details.

Children travelling as unaccompanied minors need even more paperwork, including documents providing information about the person receiving the child.

Any documents not in English have to be certified and accompanied by a sworn translation.

Although obtaining all this extra documentation may be time-consuming the major goal is to ensure the safety of children.

The new law is a lot of information to take in but the main issues with the new regulations seem to be:

• Visa Fees: There is no mention in the regulations how much it will cost to lodge an application.
• Net worth requirements for retirement visas have not been included
• The inclusion of the Department of Labour will result in delays as previously seen
• The inclusion of the Department of Trade and Industry in the visa process which will cause delays and scare off potential investor and business owners as the process will be extremely cumbersome
• VFS and their fees: What is the new role of VFS? What authority do they have?
• The scarce skills visa: No list has been given that highlights skills shortages.

It all seems a little confusing right now but the end result should benefit us all. With proper long term planning from our side and the more efficiency on government side, it could actually be a good thing!

We will have to see…

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