UPDATE on current Visa Chaos

There is a considerable weariness and lack of certainty among foreigners when it comes to the current situation around Immigration Visa and Residence Permits. Therefore please find clarifications to the various questions, which have been raised with Into SA during the past weeks, and which may apply to your personal situation:

Visa Validity Under COVID Lockdown

With beginning of the “hard” lockdown (Level 5) the Department of Home Affairs (“DHA”) had essentially abandoned its offices with regard to immigration visa, residence permits and refugee reception. A State of Disaster was declared by Minister Nokosazana Dlamini-Zuma (“NDZ”), who also headed the National Coronavirus Control Council in her function as Disaster Manager under the Disaster Management Act (Act No.57 of 2002).

Immigration Directives No.3 and No.7 dated 17 March 2020 cancelled each existing temporary residence visa issued to foreigner, who were outside the country at the beginning of the lockdown and the closing of borders as well as revoked all visa exemptions as stipulated in the Immigration Act, Act No. 13 of 2002.

For those residing with a temporary residence visa inside the Republic at the time of lockdown, their Visa were granted the right to be re-applied for or renewed. Expired visa would not be contemplated to be the course of extradition or constitute an illegal overstay and no Form 20 would be necessary when leaving the Republic on an expired visa.

Thereafter the Minister made use of his right to issue and publish in the Government Gazette the following:

AMENDMENTS OF DIRECTIONS ISSUED IN TERMS OF REGULATION 10(8) OF THE REGULATIONS MADE UNDER SECTION 27(2) OF THE DISASTER MANAGEMENT ACT

     Amendment             Date                       Notice No.

               1                      26 March                      416

               2                      9 May                            518

               3                      10 June                          664

               4                      12 July                           763

               5                      31 July                           843

               6                      25 August                      923

               7                      30 September             1029

Those Amendments followed the extensions of the State of Disaster and step-by-step extended the validity for all Visa until – currently – 31 January 2021 for any temporary resident to leave the Republic on an expired visa without being declared undesirable.

Intended Stay Until After 31 January 2021  

A lot of enquiries were received with regard to extended stays over and above the 31^st of January 2021 and how they would be handled.

If you have any visa and do nothing to extend or renew, then you have to leave the Republic latest on 31 January 2021 without being declared undesirable.

If you intend to stay on after that date, you will be required to apply for an extension or renewal 60 days prior to the expiry of the current visa, i.e., the application has to be handed in latest by 30 November 2020 (60 days before 31 January 2021).

Please note that the DHA and VfS are in fact working since 22 September and – although widely still on skeleton staff – are able to process these applications. Appointments continue to be by electronic booking for a submission date only and the principle “First Pay – First Serve” applies.

Entering South Africa On Existing Visa

The borders for inbound flights are open for Business Travellers only (Leisure Travellers see the special note at the end of this chapter) but limited to entry via one of the three major airports only:

Johannesburg             OR Tambo

Cape Town                  Cape Town International

Durban                        King Shaka

Entry into the Republic is only granted based on a valid visa, unless the person arrives from one of the red-listed countries with extremely high COVID-I9 infection Rates. In this case the person has to be in the possession of a valid visa and needs to obtain additional approval to enter the country through an application to DHA containing:

1. a copy of passport and/or temporary residence visa;
2. proof of business activities to be undertaken in the Republic; 
3. proof of travel itinerary; and
4. proof of address or accommodation in the Republic.

Upon entry of South Africa the traveller also needs to provide a Negative COVID Certificate, which may not be older than 72 hours before departure.

On the current Red List, which is updated every two weeks, are currently 22 countries:

PLEASE NOTE: Leisure Travellers, who wish to spend a holiday, visit friends or relatives or want to engage in any other leisure activity CANNOT enter South Africa until Lockdown Levels have been abolished and the State of Disaster has ended. This is currently projected only to be as from 1 March 2021, but the date might change in light of a possible second wave of infections. However, since the current legislation is patchwork with more holes than a Swiss Cheese, there are in certain  instances ways around it making leisure travel still possible.

Intra-Company Transfer Work Visa

A lot of controversial opinions are circulating regarding Intra-Company Transfer Work Visa (“ICT Visa”). The various versions circulating are owed to a miscommunication between the Department of International Relations and Cooperation (“DIRCO”) and the DHA, namely between Ministers Naledi Pandor and Aaron Motsoaledi. While DIRCO started to inform the embassies already about the new visa types, which will see drastic changes to Business Visa and ICT Visa, DHA – like usual – was limping behind and forgot to formulate and publish correspondent information.

While it now looks like that 10-year Visitor Visa are becoming the Norm and ICT Visa will be replaced by Business Visa without the requirements of Confirmation / Recommendation Letters by the DTI or Labour and without investment of ZAR 5m and without the necessity to employ at least 60% South Africans, in the interims DHA Directive 15, dated 26 October 2020, clearly communicates that the holder of an ICT Visa, who has been residing in South Africa during Lockdown and whose ICT Visa has expired or will expire before 30 June 2021 may apply for another ICT Visa with a validity of another 24 months, subject to:-

1. Proof that local entity still requires the employee to assist;
2. Proof that the Skills Transfer has been completed;
3. Application for another term to be considered a new application;
4. No contribution towards Permanent Residence; and
5. No Changes of Employer, Status or Conditions.

Critical Skills Work Visa

If a Critical Skills Work Visa (“CSWV”) or a former Exceptional Skills Visa expired during Lockdown, its validity also continues until 31 January 2020. But in order to extend either of them, the latest conditions pertaining to Critical Skills Work Visa apply and the application has to be applied for latest on 30 November 2020.

For the extension the proof that the original membership with the professional body still exists is necessary. But that may not be applicable anymore if the previous CSWV was based on a Shortage Occupation, which is no longer considered. Although Minister Motsoaledi was supposed to issue in 2019 already a reviewed “Shortage Occupation List” in terms of s19(5) of the Immigration Regulations 204 showing the available qualifying critical, it has not been forthcoming. Therefore the list of 2014 still applies on paper, but with a few corrections.

In order to assist the DHA Minister to create an amended Critical Skills List, the Department of Higher Education and Training on 17 August 2020 published in Government Notice No. 892 its Call for Public Comment on its draft list of Occupations in High Demand which aims to establish the skills most in-demand across the country.

Although the public participation process has already reached its deadline in October, a new Critical Skills List has not yet been forthcoming; but for those who hold a CSWV based on some occupations not being mentioned anymore, a renewal of their Visa might pose a problem if not applied for before the new list is published. On the other hand, the new list will contain additional skills, which previously did not qualify for a CSWV.

10-Year Multiple Entry Visa

The 10-Year Multiple-Entry Visa is not a myth! The Visa that was introduced in 2014 was decided to remain as a viable visa options for leisure as well as business travellers, but so far limited to nationals from BRICS countries (Brazil, Russia, India and China) and from Africa. But most recent correspondence between DIRCO, DTI and DHA shows that the intention to widen the traveller base by including other qualifying nationalities is currently on the cards.

Famous Last Words

The current pandemic and its possible resurfacing infection numbers in a second wave will ultimately determine when it is time to go “back to normal”. However the new normal will be different from the old as the mills inside DIRCO and DHA are busy turning in order to amend the existing visa landscape in South Africa.

We will see the start of the eVISA Portal, which will ease some of the previously tedious procedures, but we will also see serious amendments to the existing business visa, which might exclude quite a few visa holders from extending those.

We therefore recommend to push for Permanent Residence as soon as possible, and – in case that is not possible – at least for a maximum extension of the current visa; and that without waiting for the 31^st of January 2021 or the end of the pandemic!