New Immigration Regulations needs Foreigners to act quickly

If you are amongst those lucky foreigners in possession of a permanent residence permit, you may now skip to the next article, but if you are not and have not yet been arrested at OR Tambo for trying to depart on an expired visa, you should know the following:

h3. Implementation Date for New Regulations

It is undecided, who was surprised more – the unsuspecting public or the employees of Home Affairs, when the new Immigration regulations came into force on Monday, 26 May, the last act of Minister Naledi Pandor before she packed her bags and made space for the new Minister of Home Affairs Malusi Gigaba, so far only known for his Sex Scandals.

But it is a fact that they are in force, although there are still a few exceptions where applications can still be submitted under the old regulations. While in Pretoria the last application under the old regulations was accepted on Friday, 30 May, Durban, Bloemfontein and George will still accept applications under the old regulations until 6 June, Johannesburg until 18 June, Cape Town on 20 June and Port Elizabeth, Nelspruit and Polokwane until 23 June. Most of the embassies abroad will still accept applications until 18 June. Thereafter only the new regulations will apply and most of the applications will have to be submitted at the South African embassies and consulates abroad, while the meagre rest will have to be submitted to your local Visa Facilitation Services Center (VFS) by appointment only and which will charge you R 1 350 on top of the usual application fee, a benefit that solely goes to the shareholders of the private operating company (who has seen the tender for their set-up?).

h3. Expired Visa

Any foreigner, who attempts to depart the country after his or her Visa has expired will no longer be fined, but declared “undesirable” in terms of section 27(3) for a period of between twelve months and five years depending on the time past since visa expiry and the number of previous transgressions in this regard. A submitted extension application and receipt thereof are not sufficient to prevent this measure! This practice is already in place at the South African airports!

h3. No more Representation

All (!) applicants will from now on have to submit their applications and appeals in person to the VFS, embassy or consulate and cannot be represented by a third party.
However Into SA continues to attend to the draft of the applications, translation and collation of documents and attachments and offers to accompany the applicant as his or her “skilled companion”.

h3. Change of Permit

Applicants, who wish to apply for another type of permit and not for an extension will from now on have to submit their application (in person!) in their home country and need to await their issue before they can return. Excepted are only the family members of holders of Work and Business Permits, if they commence work or studies. This affects especially all holders of Tourist Visa as well as Intra-Company-Transfer Work Permits, which cannot be extended. Extensions of existing permits will now have to be applied for 60 days before expiry (previously 30 days), otherwise the applicant must submit his extension and await its outcome in his home country. Note: If an extension application is not finalised prior to expiry and the applicant is still in the country, he or she will become undesirable as per above upon departure, no matter how long Home Affairs takes to process the application.

h3. What is “new” with regard to Permit Types?

Beside that all permits are now referred to as Visa and no new fee table has been released, the following conditions have changed with regard to the catalogue of Visas (sic!):

h4. VISITOR VISA

Visitors, who receive their visitor visa at the border or port of entry, section 10, and who leave South Africa for a neighbouring country will only get the remainder of their original visa upon re-entry. If the visa has expired in the meantime they will not be issued with another 90 day visa, but only with a seven day visa, section 11(5).

h4. STUDY VISA

Study visas will no longer be issued for language courses, practical training or other education but only for education / studies offered by any institution of higher education, college or school under the Schools Act, section 1. But the study visa can now be issued for a period of up to eight years, section 12(2)(b)!

h4. ACCOMPANYING LIFE PARTNER

Life Partner Visas (LPV) are now already issued if the partnership has lasted two years instead of the previous five years and a notarial life-partnership agreement has to be provided, section 3(2)(a). A partnership between two foreigners has no linger to be concluded within the Republic of South Africa.

h4. BUSINESS PERMIT

While Home Affairs has not made a decision yet to increase the required investment capital from ZAR 2.5m (rumour has it, that it will be doubled to ZAR 5m) the former requirement of five employment positions to be created has been replaced undertaking of 60% of the staff being permanent employed SA Citizens or permanent residents within 12 months, section 14(1)(b). The respective form requiring this to be part of the Certificate of a Chartered Accountant is one of the many mistakes in the new application forms and can be ignored.

Further more the letter of recommendation, which was previously required only for certain industries and in case of a lower investment capital, will now have to accompany every application, section 14(1)(e). This will increase cost and time frame for the preparation of the application and will also create certain unpredictability for such applications.

h4. GENERAL WORK PERMIT

While it is widely appreciated that this visa type still exists (sarcasm!) it will become even more tedious and will take much more time to apply for than before. The new regulations now require not only a SAQA Certificate for every (sic!) applicant, even for those without qualification, section 18(3)(b), they also require a certificate by the Department of Labour confirming – amongst other – the unsuccessful search of the employer to find a citizen or resident with the required qualifications and that the applicant possesses same, section 18(3)(a). Such certificates in the past took up to six months to obtain. On the positive side: no repatriation deposits are payable anymore.

h4. EXCEPTIONAL SKILLS WORK PERMIT

This permit does not exist anymore and has been replaced by the Critical Skills Visa.

h4. QUOTA WORK PERMIT

This permit does not exist anymore and has been replaced by the Critical Skills Visa.

h4. CRITICAL SKILLS WORK VISA

This visa replaces both of the above mentioned work permits and is based on the General Work Visa with identical requirements, but requires in addition not only the confirmation of the applicant’s skills by the professional body of his or industry (no matter whether there is one or not), also proof of application for a certificate of registration with such body, section 18(5)(a) and (b).

There will no repatriation fees payable anymore, the permit can be issued for up to five years and is easily extendable subject to what was stated above. It continues to be free of binding to an employer as the previous Exceptional Skills Permit.

h4. INTRA-COMPANY TRANSFER VISA

Opposed to its predecessor the visa is now valid for a maximum of four years in line with international standards, but still cannot be extended. The employee, however, has to be employed abroad for a minimum of six months before he can receive an ICT Visa.

h4. CORPORATE WORK VISA

This rather complicated and long-winding Visa to apply for will continue the requirements as under the previous regulations including the necessary letters from the DTI and the Department of Labour, but will only issued for a period of three years (previously five). Also the previous possibility to replace a vacated position based on the same Worker’s Certificate has been abolished and employees on a Corporate Worker’s Visa will not be able to extend or change the Visa into another Category, it still does not count towards a permanent residence permit and they will have also to prove their skills through SAQA and to register with their professional body.

For any further questions, “*please contact Into SA*(Contact Into SA for Advice)”:https://www.into-sa.com/contact/new

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