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SOUTH AFRICA: Pending Changes to the Work Permit Regime

Outside of refugee movements (which are regulated by the Refugees Act), immigration in South Africa is regulated by the Immigration Act, 2002, and the regulations to that Act. Two significant amendments to each of these Acts are expected. The Department of Home Affairs is revising the regulatory regime underpinning these Acts. These amendments may come into operation in the second quarter of 2012 or possibly as soon as the end of April 2012.

While the provisions of the Amendment Acts are obviously known, the Department tends not to reveal in advance what is coming in the regulations and is not required to engage stakeholders on their content. In some critical ways, it is impossible to understand the Amendment Acts before we have seen the new regulations.

One issue that will affect the deployment of staff to South Africa is, however, quite clear. Under the current Act (and even its predecessor), it is entirely lawful for an expatriate employee to travel to South Africa immediately to take up a post, particularly if he or she is the holder of a visa-exempt passport. The employee would enter the country as a visitor and then apply from inside the country for the appropriate work or transfer permit. Even if his or her visitor permit had expired before the main application had been adjudicated and approved, in practice the Department's receipt for the application would serve as a de facto permit to remain in the country. It would not be a de facto "interim" work permit, however.

The new Act expressly provides that, from whenever it comes into operation, a person cannot travel into the Republic as a "visitor" and then, within a week or several, apply for a work permit. Travelling with one's family and seeking study permits, or similar activities, would be a dead giveaway as to intent. The new Act reasons that to say that one is entering the country on the basis of being a visitor when he or she knows that the real purpose is to take up a position constitutes misleading the Department and entering on the basis of misrepresentation. So applying to change a visitor permit to a work permit (or medical permit) will be strictly prohibited. The visitor must instead return to his or her country of ordinary residence (with the family) and apply through the appropriate Embassy for the correct permit.

The new Act provides that "internal" changes of purpose will only be allowed in exceptional circumstances to be defined by the Minister in the new regulations.

Employers should be alert to these changes because a mistake could be a very expensive miscalculation.

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