Renewing general work visas challenging in South Africa

Source: SA Migration, 19/03/2019

Holders of general work visas, the most commonly sought visa for
foreign professionals working and living in South Africa are finding
it practically impossible to renew their visas.
Applications are regularly rejected for reasons not given or because
the Department of Labour has found that issuing the visa could
discriminate against South Africans, even in cases where the
applicants’ jobs depend on them being fluent in a language not spoken
in South Africa.
The Department has added layers of bureaucracy and inconsistency in
carrying out directives and applying the law, compounding delays in a
process already fraught with hurdles.
Stefanie de Saude, of De Saude Attorneys, hears reports almost daily
of professionals who have lived and worked legally in South Africa for
years, now denied renewed work visas and facing the prospect of losing
their homes and jobs and disrupting their families.
The law requires the Department of Labour to assess each application
it receives to determine whether it complies with the regulations
18(3) (a) to (e). These regulations require, amongst other things,
that a diligent search is carried out for a job candidate in South
Africa before a foreign applicant is appointed, and that the skills or
experience of a suitable South African is not available in the labour
market. Thereafter the Department of Labour will issue a certificate
of recommendation to the Department of Home Affairs.
In theory, this should be a relatively simple process taking no more
than around 30 days. In practice, however, the assessment runs to site
visits, SARS checks and more, and can take in the order of seven
months to complete. In many cases, the Department of Labour rejects
the application at which point, Home Affairs rejects it too, citing a
‘negative recommendation from the Department of Labour’ without
providing adequate reasons for the rejection.
Limited scope to appeal
There is limited scope to appeal when the reason for the application
being denied has not been disclosed.
“Indeed, in our work on numerous such applications, we have only twice
been told why the certificates were not issued â€` and in both cases,
the Department of Labour had found that the foreign language
requirements discriminated against South Africans. Unfortunately, for
the employers and applicants concerned, those foreign language skills
were vital in order to carry out the work,” explains de Saude.
The gap between theory and practice is confusing for all concerned. In
a recent High Court judgment, the applicant in the case applied for a
waiver of the need for a Department of Labour certificate. He was
rejected, for reasons that we have seen before â€` in essence, the
decision maker reiterated the basis of the requirement of the
Department of Labour certificate, without considering whether a waiver
from the usual rules was deserved in this case. On review, the judge
found that that the decision maker had misapplied his/her mind, and
had been needlessly rigid.
Despite this judgement, we still receive waiver refusals for exactly
the same reason and the outcome of work visa applications has begun to
look like a foregone conclusion â€` bad news for applicants.

Critical skills also affected
These challenges are also affecting critical skills visas to some
degree. Where once, applicants in possession of scarce and critical
skills might have been issued with five-year visas, without the need
for an employment contract at the time of application, they are now
being issued with 12-month visas, bound to particular employers, so
undermining the country’s efforts to bring important skills resources
into South Africa and support much-needed skills transfer. The list
itself lacks clarity and fails to support the intentions of the law.
For example, the Department of Home Affairs incorrectly interprets the
BPO category as covering only call centres and no other BPO services,
therefore any critical skills applicants in this category would have
to work in a call centre in order for the visa application to be
approved. The emphasis is therefore not on the skill at all but rather
the sector.
For more information, go to www.samigration.com or www.sami.co.za