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SOUTH AFRICA: Major Changes in Immigration Law and Regulations

There have been major changes in South African immigration law and regulations.

The 2007 and 2011 Amendments to the Immigration Act, 2002, along with a revised set of regulatory provisions, took effect May 26, 2014, along with the appointment of a new Minister of Home Affairs.  There are significant technical shortcomings in the regulations.  As a result, substantial corrections by the Department of Home Affairs are expected.

This summary focuses on the content and impact of the new regulations in the short term.

Visas Versus Permits

There is one significant change in the language: "Permits" are now known as "visas."  This is the case regardless of the period of admission or the place of issuance.  And the term "permit" now refers exclusively to the authorization granted to a person to take up permanent residence.  Nothing else turns on this change in terminology.

Temporary Residence Visas

Visas for the self-employed, the retired, and the independently wealthy require that the applicant show the existence of a specific investment or income level.  None of these amounts has been gazetted.  As a result, the applicant does not know what amount is required to be shown and the Department cannot adjudicate the application.  For now, these visas are "not available."

The critical skills work visa is intended to facilitate securing "critically needed" skills for the South African economy.  However, the list of critical skills also was not gazetted.  So similarly, there can be no applications for a critical skills visa at this time.

The general work visa—the backbone of the work visa regime—now requires that the Department of Labour issue a certificate recommending the approval of the visa.  But what must be submitted to the Department of Labour to get that recommendation remains unknown.  Consequently, general visas are also "inaccessible" at this time.

Intra-company transfer work visas can be applied for.  However, two significant changes have been made to this category of work visa.  They will now be issued for four years, instead of the former two years; persons on two-year transfer visas can apply for an extension for a further two years, but they cannot be extended beyond that.   The other important change is that an employee being transferred to South Africa to establish a branch office can now also apply for a transfer work visa.

Transitional Arrangements

The regulations do not allow for any period of transition, however brief, between the old and the new permit regimes.  Unless the Department "intervenes"—as is already happening in some respects—this may cause all sorts of troubles and unnecessary embarrassment to clients, service providers, and the Department of Home Affairs.

Visa Processing Changes

Persons who are in the country now on short-term visitor visas (for periods of three months or less) cannot apply, from inside the country, to change to any other category of visa unless there are "exceptional circumstances."  The list of what constitutes "exceptional circumstances" is very limited.  Such persons must now return home and apply at their nearest South African Embassy or High Commission for their new visas.

This change does not affect the position of foreign nationals who are already in South Africa on any long-term visa, such as for work, business, or study.  They can apply from inside the country to extend or change status.

Another change is that all permit applications submitted inside the country must be filed no later than 60 days before the current permit expires.

In a major overhaul of the service delivery process, the Department of Home Affairs has outsourced to the private sector the acceptance of visa applications, and ancillary functions.  This is the case both inside and outside the country.  The service provider will charge a fee to visa applicants for this service, which will include the option of a "Premium Lounge" service (a business-class lounge).

A further development is that applicants must submit all visa applications in person to allow for the capturing of biometric data.  The results of the visa applications can be collected by representatives.

People Now Overstay Their Periods of Admission At Their Peril

A major enforcement change comes in the form of the penalties that apply for overstaying the term of a visa, effective immediately.  The previous fine no longer applies.

A person who overstays the term of his or her visa—by as little as a day and up to 30 days—"may be declared undesirable" and excluded for 12 months.  If it happens again within a 24-month period, the person faces exclusion for two years.  Overstaying more than 30 days may result in "undesirability" and exclusion for five years.  Although the regulations imply that there is discretion, the directive to Immigration Officers suggests that this will be enforced rigorously.

In another enforcement-related change, the fines for contraventions of the Immigration Act have increased significantly.

Persons Seeking Asylum in South Africa

Under the previous Act, persons disclosing at a port of entry their intent to apply for asylum were issued asylum transit visas and given 14 days to report to a refugee reception office.  Under the Amendment Act, asylum seekers now have five days to report to a refugee reception office or face detention and removal as undocumented migrants.

In addition, persons who are "fugitives from justice" do not qualify for visitor visas or asylum transit visas.  This directly contradicts the Refugees Act, which says that no one may be denied entry to the Republic if they are fleeing persecution.

Minors Traveling Overseas Must Have Unabridged Birth Certificates and Their Own Passports

All children entering South Africa now must have unabridged birth certificates with them (which presumably must include sworn translations if these are not in English) whether or not they are travelling with their parents.  This measure takes effect July 1, 2014.  It applies even if the parents and children are South Africans.

Finally, all children must travel on their own passports.  Inclusion on a parent's passport is not allowed.

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