South Africa s Immigration System: A Reality Check

Source: Eisenberg & Associates, 01/04/2017

Gary Eisenberg assesses the reasons behind and effects of the 2014
amendments to South Africa’s immigration policy, and the need for a
legislative overhaul.


Why the South African Government chose to close our country’s borders
on 26 May 2014 remains a mystery. Our immigration regime has
historically â€" at least since the end of apartheid in 1994 â€" been
flexible and our labour market easily penetrable by foreign
talent.

The noise of border closure babbled in our ears in
early 2010 in anticipation of the World Cup soccer tournament held in
South Africa in June of that year.


At that stage our president Jacob Zuma s former wife Dr Nkosazana
Dlamini-Zuma was interim minister of home affairs, with grandiose
ambitions of assuming the position of chairperson of the African
Union; she achieved this aim in 2011. Without any notice she
centralized decision-making on all temporary and permanent residence
applications filed in South Africa at an adjudication hub at the
Department of Home Affairs (DHA) head office in Pretoria. Initially
most applications were lost en route from district and regional DHA
offices throughout South Africa regardless of its consequences for
foreigners and their employers.


Dlamini-Zuma had also been foreign affairs minister and was
exasperated by ongoing calls by foreign governments, especially the
British to have the issuance of passport documents
securitised.

South African passports were being found on the
dead bodies of Al-Shabaab terrorists in Somalia, and also turning up
in the possession of imposters all over the world. Her emphasis on
cleaning up shop come hell or high water, by pulling up South Africa s
drawbridges to the expatriate community was a price she was prepared
to pay.


A myth of human trafficking, which put the figure at 30,000â€"40,000
cases a year, was created to justify the implementation of various
strictures in the acceptance and processing of applications. While
South Africa does not have any significant external enemies, the
minister also cited national security concerns, together with human
trafficking, as a pretext for the creation of “Fortress South Africa”.
The Mandela legacy of opening South Africa to international
competition for talent and foreign direct investment suddenly began to
fade. Amendments to the Immigration Act (Act) were quickly forged and
passed through Parliament in August 2011 without much debate, or
informed discussion. And on 22 May 2014 its Regulations were
promulgated, giving a single business day’s notice before coming into
full force.


It has emerged from extensive research that there was never a human
trafficking crisis in existence after all. Perhaps a few hundred cases
of human trafficking in Southern Africa are recorded each
year.

In addition, the South African government has not
identified any consistent enemy on its borders. Regardless, South
Africa’s immigration rules are complicated and beset with bureaucratic
inconsistencies, bungling and sluggishness, creating an effective bar
to the specific foreigners those rules are formulated to target.


Let’s not call this a critique of South Africa’s immigration
system.

Let us rather call it a reality check. South Africa s
unemployment rate reaches an average of 24â€"26 per cent in most
sectors. It is against this background that one would imagine that the
South African government remains committed to job creation and to the
militant protection of local job opportunities for South African
citizens and through its black economic empowerment policy previously
disadvantaged members of the South African community.


Out of the three work visa categories contained in the Act the general
work visa scheme is simply unavailable. The Department of Labour (DOL)
does not easily if at all issue the requisite labour certification
confirming that no South African is available to assume a specific
employment position to be assumed by the work visa applicant. The
labour certification process is proprietary to the DOL and the DHA, so
the results of such process are not revealed to the applicant until a
decision is made on the entire work visa application. The overwhelming
majority of these applications fail due to the DOL’s lack of support.
These are obviously political or arbitrary decisions, unappealable
through the usual administrative review process closing the South
African labor market to most foreigners.


Besides the intra-company transfer work visa (which is restrictive and
does not lead to permanent residence) the existence of a critical
skills work visa category establishes South Africa s effective labor
market work visa scheme. It allows foreigners to apply for work visas
for up to five years if they conform to one of the 165 occupational
categories enumerated in the Critical Skills List published in June
2014. Excepting the occupation of sheep-shearer they are all
non-humanity occupations including medicine engineering, and IT and
telecoms. While it could be reasonably argued that even this scheme is
over-bureaucratized and sloppy in its application its existence has
improved the skills and educational levels of labor market incumbents
from abroad.


The Act establishes the business visa category to facilitate the entry
of foreign direct investors. Currently the minimum investment (subject
to a number of exemptions) is 5 million rand. All applications for
business visas require approval from the Department of Trade and
Industry (DTI). The additional layer of bureaucratic vetting was put
in place to discourage and prevent the infiltration of foreigners
pretending to be investors on the basis of false promises of
investment and employment of South African citizens and permanent
residents.


Unfortunately South Africa’s lack of foreign direct investment has not
been reversed by its business visa scheme suggesting that it should be
reviewed and replaced with a more accommodating and efficient system.
The DTI simply has insufficient skills and resources to deal
efficiently with business visa applications against the reality of a
modern entrepreneurial world where time is always of the essence and
government-sponsored red tape is an unwanted irritant. The inclusion
of the DTI in the business visa application process detracts from
South Africa’s attractiveness as a magnet for individual
investors.


The Act continues to favour retirees. It requires a foreigner to
demonstrate the availability of pension or irrevocable annuities, or
banked cash of 37,000 rand per month for up to four years. Retirees
can even request work permission on these temporary residence visas
and unless such authorization is not for a specific employer or
business enterprise permission is not usually denied.
Foreigners espoused to South African citizens or permanent residents
in heterosexual or homosexuals unions are granted specific benefits in
terms of the Act. Foreigners married to South Africans may immediately
apply for visitor visas together with any type of work or study
authorization of their choice not based on their skills qualifications
or financial wherewithal. Foreigners espoused in a life partnership
relationship must demonstrate by way of persuasive evidence that they
have been so espoused for at least the past two years including
cohabitation and the sharing of financial support.

These
temporary residence visas are normally granted for a period of two
years at a time.


The Department of Home Affairs has defied Constitutional and High
Court rulings by denying the right of foreign spouses to make their
applications in South Africa while on tourist visas. There is no
plausible explanation for this absurd divergence from legal norms
which often involves depriving children of at least one parent who has
to return home abroad to file their application. Currently judicial
proceedings are ensuing which will hopefully resolve this impasse.


Study and long-term visitor visas for a range of different purposes
(including research volunteerships artistic work and work in the
advertising and film industries) are available.


Exchange visas for foreigners under the age of 25 granting permission
to work for up to a single year without any reference to skills or
qualifications is also available.


The complexities and challenges in obtaining any of these visas do not
arise from the Act. They arise from the way applications are processed
by DHA officials mostly posted at South Africa’s foreign missions.
There is no consistency in the application of standard rules by
officials at different missions leading to a myriad of different
requirements for the same visa type. What might be required in Geneva
and Berlin is not required in London or Los Angeles. The confusion
that these divergent practices breed is significant and should be
addressed urgently by DHA management.


South Africa’s permanent residence scheme consists of nine categories.
These are:


• on the basis of five years of work visas and an offer of permanent
employment;
• having been espoused to a South African for at least five years;
• being the child, of any age, of a permanent resident or citizen;
• on the basis of extraordinary skills (limited to the Critical Skills
List);
• on the basis of an ownership and investment in a South African
enterprise;
• as a retiree (showing pensions, annuities and income streams from
assets of at least 37,000 rand per month);
• as a refugee for the past five years, certified to be a refugee
indefinitely;
• having net worth of at least 12 million rand, and upon payment of
120,000 rand to the DHA); and
• being a first-degree relative of a South African citizen or
permanent resident.
Compliance with these categories is an administratively
non-complicated exercise, but the manner in which applications are
processed and adjudicated often inspire well-founded criticism.


Applications are invariably delayed in their adjudications,
and they are frequently rejected on the basis of errors of law and
fact. Administrative appeals are also processed too slowly to meet
ordinary expectations. Processing times for permanent residence
applications range between 12 and 18 months on average, though the
DHA’s stated policy is eight months.


Of immense importance to foreigners in dire need of administrative
remedies when exceptional circumstances exist, the act creates the
catch-all “exemption”. Often, especially within this restrictive
immigration system, fairness and substantial justice will require the
minister to grant remedies when the standard immigration categories do
not. By nature, most of these exemption cases are of urgent cause, but
they are dealt with reluctantly, if at all, or within time frames
(years) which defy the need for such applications in the first
place.

The Act’s permanent residence exemption scheme must be
implemented by the DHA with greater reverence for its purpose, and
within prioritized time frames which make sense.


The 2014 amendments have failed to strike the magic balance between
state security and the enrichment of the South African fiscus and
labor market with foreign direct investment and needed skills,
ultimately failing to increase South Africa’s waning competitiveness
in Africa and globally. While the Green Paper recently published by
current home affairs minister Malusi Gigaba strongly criticized the
current regime for its failures, its implementation into a legislative
overhaul cannot come soon enough.