Citizenship is hard to come by for skilled immigrants who create jobs

Source: Sa Migration, 09/02/2018

Immigration attorney to challenge in court the unlawful and arbitrary
10-year permanent residency regulation
Almost seven years ago, I arrived in SA as a 24-year-old unemployed
university graduate from Israel and the US. I had met my then South
African partner while on holiday in Cape Town, and due to the US
Defence of Marriage Act, which forbade US citizens from sponsoring
same-sex partners for green cards, our only option was for him to
sponsor me to move to SA as his life partner on a temporary residence
visa.
In 2013, I was granted permanent residence based on `extraordinary
skills`, which I demonstrated through work, references and
publications. I used these skills to launch En-novate, a company I co-
founded that takes South African entrepreneurs and business
professionals to different parts of the world to look at innovation
and how to make local companies more globally competitive and
stimulate job creation.
To date, we have taken hundreds of South Africans to world-leading
ecosystems such as Amsterdam, Seattle, Silicon Valley and Tel Aviv to
explore the future of industries of strategic national importance,
such as agriculture, manufacturing and financial services. We have
even worked with the public sector including the Department of
Science and Technology and Council for Scientific and Industrial
Research.
In 2016, I decided to make the ultimate commitment to the country in
which I have lived most of my adult life and applied for South
African citizenship. In my application, I demonstrated my personal
financial commitments to SA (including property ownership), the
number of South Africans I employ, as well as the many economic
contributions my company has made to SA (not to mention the corporate
taxes we pay) by taking small, medium and microenterprises and
business professionals abroad to promote doing business with SA.
Section 5(1) of the South African Citizenship Amendment Act of 2010
states that the minister may grant a certificate of naturalisation as
a South African citizen to any foreigner who satisfies the minister
that he/she `has been admitted to the republic for permanent
residence` and `is ordinarily resident in the republic and that he or
she has been so resident for a continuous period of not less than
five years immediately preceding the date of his or her application`.
In short, one must be a permanent resident and have lived
continuously in SA (no more than 90 days out of the country per year)
for at least five years.
The relevant regulations to section 5(1) say the `period contemplated
in section 5(1)(c) is 10 years`. However, when one reads section 5(1)
(c), no further period is contemplated. In addition, regulations are
subordinate to legislation and cannot be more restrictive than the
enabling legislation.
Nonetheless, the department has been systematically rejecting the
citizenship applications of countless foreign nationals on the basis
that we have not been permanent residents for 10 years. This
arbitrarily constructed 10-year regulation is not being implemented
as the drafter of the legislation intended, otherwise the act would
have specified permanent residency of 10 years as a prerequisite for
naturalisation.
I have said goodbye to several friends in 2017 who were forced to
leave due to the Department of Home Affairs not taking their unique
economic and social contributions into consideration
I have just returned from the Netherlands, where government officials
have established a special office to assist highly skilled
individuals to obtain residency. My home country grants green cards
in the EB-5 visa scheme to individuals who invest at least $1m in
businesses that employ at least 10 US workers. These individuals are
eligible to apply for citizenship after holding a green card for at
least five years.
A 2016 study by the National Foundation for American Policy found
that more than 50% of US tech start-ups valued at over $1bn were
founded by immigrants. In 2011, the Partnership for a New American
Economy found that more than 40% of Fortune 500 companies were
founded by immigrants or children of immigrants.
In contrast, immigrants in SA such as myself, who are not a burden on
the state and actually create jobs in a country with an unemployment
rate of 27.7%, are having our citizenship applications rejected based
on unlawful regulations. Section 5(9)(a) of the act states that, `The
minister may under exceptional circumstances grant a certificate of
naturalisation as South African citizen who does not comply with the
requirements … relating to residence or ordinary residence in the
republic.`
Former home affairs minister Malusi Gigaba invoked this section when
granting the Gupta family early naturalisation due to their `business
investments and social partnerships`, with the department citing the
company’s loyalty and commitment to job creation as good reason to
grant the family citizenship. It appears that these special
circumstances are selectively applied to the extremely politically
connected, leaving the rest of us with rejected applications and
wondering whether our skills are even desired by the South African
government.
This has left immigrants in my predicament with no option but to
litigate. Immigration attorney Stefanie de Saude is taking the issue
of the arbitrary 10-year permanent residency requirement to court on
behalf of a client. It will be heard in Cape Town on November 23. I
hope this issue is resolved swiftly by the courts before these
arbitrary regulations lead to the departure of much-needed job
creators. I have said goodbye to several friends in 2017 who were
forced to leave due to the Department of Home Affairs not taking
their unique economic and social contributions into consideration.
In an era of globalisation, where countries are competing for the
best talent regardless of their country of origin, SA is sending a
strong message to entrepreneurs that our economic and social
contributions do not merit South African citizenship (despite legally
qualifying), and we are thus not wanted here.
On April 25, Home Affairs Minister Hlengiwe Mkhize told Business Day
that she committed to making it easier for skilled migrants and
investors to get through the system and that her department
would `sharpen its efforts aimed at attracting skilled migrants to
help rescue the economy, which is stuck in a low-growth trap and is
contending with high unemployment`.
I implore the minister to make good on her word and grant citizenship
to legally compliant applicants, who are deeply committed to building
this country and growing its economy. In addition, early
naturalisation for permanent residents who are making a significant
economic contribution to the country by invoking section 5(9)(a)
should be applied broadly and based on merit.