Archive from October, 2019
Oct 31, 2019 - Uncategorized    No Comments

Visa waivers and fast-track entry

What are the main work and business permit categories used by companies
to transfer skilled staff?
South Africa Sa Migration International
The categories are dependent upon the employment relationship with the
foreign national (direct employment with the South African entity or
retention of employment with an entity abroad), the expected assignment
or employment duration, the skills, qualifications and experience of
the foreign national and the role to be performed by the foreign
national within South Africa.
Intra-company transfer (ICT) work visas are utilised for the transfer
of skills between affiliated entities where the foreign national
retains employment with the group entity abroad. An ICT work visa may
be issued for a period of up to four years.
Corporate visas may be issued to any employer demonstrating a need for
a predetermined number of foreign nationals within specific roles for a
limited duration to the satisfaction of the DoL, the Department of
Trade and Industry (DTI) and DHA. The issuance of the visa is subject
to such employer operating within certain industry sectors as
prescribed in the national interest and possessing and maintaining a
workforce comprising a minimum of 60 per cent South African citizens or
permanent residents in permanent employment. An individual corporate
work visa is issued to an individual foreign national based on the
corporate visa held by the prospective employer.
General and corporate work visas are utilised where a foreign national
commences direct employment with a South African entity. These work
visas may be issued for a period of up to five years subject to the
duration of the employment contract or the validity period of the
corporate visa (held by the employer); however, additional labour law
requirements, administered by the DoL, have recently been introduced.
A critical skills work visa is available for foreign nationals
intending to take up direct local employment who comply with prescribed
skills to facilitate the importation of foreign nationals holding
specific skills to the benefit of South Africa. In certain instances, a
critical skills visa may be issued to a foreign national, in the
absence of a contract of employment, for a period of up to 12 months
subject to the foreign national confirming securing employment within
12 months of the date of issuance of the visa.
Procedures
What are the procedures for obtaining these permissions? At what stage
can work begin?
South Africa Sa Migration International
ICT work visa
An ICT work visa may be issued to a foreign national who is employed
abroad by a business operating in South Africa in a branch, subsidiary
or affiliate relationship and who by reason of employment is required
to conduct work in the country. A foreign employment contract and
letters of motivation from the related home and host entities
confirming the purpose and duration of the transfer are required. The
host entity should sufficiently motivate the foreign national to be in
a position to transfer skills and knowledge to the host entity during
the assignment period (he or she must submit a detailed skills transfer
plan upon application) and will depart the country upon completion of
the tour of duty.
The foreign national applicant must have worked for the home country
entity for a minimum period of six months prior to becoming eligible
for an ICT work visa.
www.samigration.com

Oct 31, 2019 - Uncategorized    No Comments

Short-term transfers

Non-visa-exempt nationals are required to apply for the required
visitor’s visa in person at the South African representative in their
home country or country of long-term residence and receive same prior
to travelling to South Africa. The visitor’s visa may be issued for a
maximum period of 90 days (single or multiple entry) and the processing
time ranges from 10 to 15 working days calculated from the date of
submission of the application.
The purpose of these visitors’ visas is to facilitate entry for tourism
and limited business purposes while work activities are prohibited. All
foreign nationals (irrespective of nationality) intending to perform
short-term work in South Africa are required to apply for a section
11(2) visitor’s visa in person from the South African representative in
their home country or country of long-term residence and receive same
prior to travelling to South Africa.
Eligibility to perform work-related activities under a section 11(2)
visitor’s visa is subject to specific qualifying criteria originally
introduced by the DHA in December 2011 and amended in May 2014.
Restrictions
What are the main restrictions on a business visitor?
South Africa Sa Migration International
A foreign national entering South Africa to undertake business
activities (not work) will be permitted to attend local business
meetings or training and strategy sessions for a limited duration.
There is no specific maximum duration applicable to business visitors;
however, the foreign national, if queried, must be able to justify the
length of stay spent in South Africa and the non-work-related
activities being performed. A business visitor should not receive
remuneration from a South African source while present in South Africa.
A foreign national intending to perform work-related activities within
South Africa must obtain a visitor’s visa (section 11(2) of the Act)
with special conditions. General practice requires such foreign
national to retain employment abroad throughout his or her stay in
South Africa (external contractor resources are only permitted in
certain instances) and, in accordance with the revised qualifying
criteria, such foreign national’s activities in the country must be of
an urgent nature and such individual must be unable to qualify for a
formal category of work visa. The DHA has further issued a directive
preventing certain applicants from eligibility for a section 11(2)
visitor’s visa based on the intended activities to be performed in
South Africa (these exclusions include project managers and self-
employed applicants).
A recent directive issued by the Department of Home Affairs in April
2019 has limited the issuance of these visas to an initial 90-day visa
issued at a South African embassy abroad, followed by an extension of
the visa for a further 90 days from South Africa within the same
calendar year. Total duration is limited to 180 days per year and a
third section 11(2) visa cannot be applied for abroad within the same
calendar year.
This has been the accepted practice for some time; however, the
directive further makes reference to prohibiting back-to-back issuance
of section 11(2) visitor’s visas from the consulate in the applicant’s
home country.
There is no definition of the time period intended by ‘back to back’
and this will impact applicants who are assigned to South Africa on
different projects during a 12-month period (where such project
intervals exceed 180 days from assignment start date) as the previous
solution of applying for a second section 11(2) visitor’s visa at the
consulate (as opposed to the extension from within South Africa) is now
subject to discretion and potentially removed as an option (this will
impact applications processed through Australia, Canada, the United
Kingdom and the United States, where the issuance of second such visas
was previously possible).
The holder of a section 11(2) visitor’s visa may be remunerated from
within South Africa (including freelance or consulting services);
however, the foreign national may only open a non-resident bank account
that, generally speaking, only permits receipts from offshore. Holders
of a visitor’s visa further cannot import household goods free of duty
or VAT.
Short-term training
Is work authorisation or immigration permission needed to give or
receive short-term training?
South Africa Sa Migration International
The differentiating factor is found in the activities to be performed
in the country. Attending training should not require a work
endorsement, whereas presenting or facilitating training will require a
work endorsement as these activities are consistent with work-related
activities.
Transit
Are transit visas required to travel through your country? How are
these obtained? Are they only required for certain nationals?
South Africa Sa Migration International
Under a directive issued in 2015, the Minister of Home Affairs exempted
travellers transiting through the following international airports in
South Africa from requiring transit visas:
• OR Tambo;
• Cape Town;
• King Shaka; and
• Lanseria.
Travellers transiting these airports will be subjected to biometric
capturing, and travellers using land ports of entry to transit through
South Africa should apply for port of entry visas.
However, deportees transiting must be in possession of transit visas
and at all times be escorted; failing which, they must be returned to
the airline that conveyed them for removal from the country.
A transit visa is required when travelling to one of the following
neighbouring countries via South Africa: Botswana, Lesotho, Mozambique,
Namibia, Swaziland and Zimbabwe.
Transit visas are not issued at South African ports of entry and
applications must be made to the South African representative abroad.
Transit visas are issued for periods up to 72 hours and the processing
time ranges from five to 10 days calculated from the date of submission
thereof.
www.samigration.com

Oct 31, 2019 - Uncategorized    No Comments

Corporate Immigration General framework Legislation

International agreements
Has your jurisdiction concluded any international agreements affecting
immigration (eg, free trade agreements or free movement accords)?
South Africa Sa Migration International
South Africa has not signed any international agreements (apart from
the visa-exempt agreements mentioned in question 5). South Africa has
issued certain dispensations to regularise the status of certain
nationalities in southern Africa (Zimbabwe, Lesotho, etc).
Regulatory authorities
Which government authorities regulate immigration and what is the
extent of their enforcement powers? Can the decisions of these
authorities be appealed?
South Africa Sa Migration International
The Department of Home Affairs (DHA) is responsible for the control,
regulation and facilitation of immigration to South Africa, including
the enforcement thereof. Enforcement measures include fines or
imprisonment for breaches of the immigration legislation with the
potential for deportation of non-compliant foreign nationals. The
Department of Labour (DoL) is increasing its role in the immigration
process, in conjunction with the DHA, to ensure sustainable
opportunities for South African citizens or permanent residents in the
local employment market.
Decisions of the DHA and DoL are subject to internal and external
appeal through stated regulations or court action, as needed.
Government policy
In broad terms what is your government’s policy towards business
immigration?
South Africa Sa Migration International
The South African government supports skilled immigration in accordance
with its stated policy to develop and expand the local economy for the
benefit of South Africa and its citizens.
However, this policy is balanced against the need to address
unemployment levels within the country, security issues for the country
(including citizens, foreign nationals, and minor children and
travellers) and the commitment to increase employment opportunities for
local citizens.
Accordingly, the intention is that the importation of foreign skills to
South Africa should gradually decrease through the training of local
citizens to meet future employer demand.
www.samigration.com

Oct 31, 2019 - Uncategorized    No Comments

Corporate visa

The Act prescribes that a corporate visa may now only be issued to an
employer operating within the prescribed national interest and further
such employer must provide proof that at least 60 per cent of the total
staff complement that are employed in the operations of the business
are South African citizens or permanent residents employed permanently
in various positions and such ratio must be maintained through the
validity period of the corporate visa. A corporate visa may be issued
for a period not exceeding three years and authorisation certificates
to employ workers (individual corporate work visas) may not be issued
for a validity period exceeding the validity period of the corporate
visa held by the employer.
The Act prescribes a minimum financial guarantee to be posted by a
corporate applicant to be 30,000 rand (subject to change) per foreign
national employee that the corporate applicant intends to employ.
General work visa
A general work visa may be issued to a foreign national who is
intending to take up direct employment with a South African entity. The
Act now requires the prospective South African employer to submit an
application to the DoL for a certificate confirming the following
points:
• that despite a diligent search, the prospective employer has
been unable to find a suitable South African citizen or permanent
resident with qualifications or skills and experience equivalent to
those of the applicant;
• the applicant has qualifications or proven skills and
experience in line with the job offer;
• the salary and benefits of the applicant are not inferior to
the average salary and benefits of citizens or permanent residents
occupying similar situations in South Africa; and
• the contract of employment stipulating the conditions of
employment and signed by both the employer and the applicant is in line
with the labour standards in South Africa and is made conditional upon
the general work visa being approved.
An evaluation of the foreign national’s academic qualifications by the
South African Qualifications Authority (SAQA) is an additional
requirement; however, this may be exempted in certain circumstances
where a foreign national applicant does not have formal qualifications
(or existing qualifications cannot be assessed for whatever reason) and
his or her skills and experience are the defining criteria for the
appointment.
The DHA may, upon application for exemption thereof, waive certain of
the mandatory requirements for a general work visa.
Critical skills work visa
A critical skills work visa may be issued to a foreign national
provided that such foreign national falls within a specific
professional category or occupational class included in the critical
skills visa list.
The key requirements include SAQA evaluation, registration with the
relevant professional body or council and a letter of recommendation
from the relevant professional body or council recognised by SAQA
attesting to the skills and qualifications of the foreign national. (A
directive issued in October 2014 has removed the need for the applicant
for a critical skills work visa to submit the prescribed letter of
recommendation from the applicable regulatory body in circumstances
where the applicant has submitted proof of membership or application
for membership with such regulatory body as part of his or her
application. However, certain South African representatives abroad do
not accept the directive, which affects the consistency of the
application process.)
A critical skills work visa may be issued upon receipt of an offer of
employment, or in the absence thereof; however, the holder of a
critical skills work visa must confirm receipt of employment within a
period of 12 months of obtaining the visa.
All foreign nationals are required to apply for the respective work
visa either at the South African representative in their home country
or country of long-term residence or the DHA within South Africa (only
in certain defined instances as the majority of applications will now
be submitted abroad). Foreign nationals will need to submit all
prescribed personal supporting documentation including, but not limited
to, birth certificates, medical and radiological reports and police
clearance certificates.
The processing times are dependent upon the category of work visa and
the place of submission and range from 10 to 60 working days calculated
from the date of submission thereof. Foreign nationals are only allowed
to commence working or seek work following the issuance of the
respective work visa.
In addition to the Immigration Regulations, the Employment Services Act
No. 4 of 2014 prescribes that skills transfer plans must be prepared
with respect to all foreign national appointments, irrespective of the
temporary residence visa category, and retained on the employee file.
In late 2018, a draft critical skills list was to be released for
consultation with stakeholders. The revised list would essentially
reduce certain categories, while expanding others, on the critical
skills list. The final revised critical skills list has yet to be
published and released for use.
The impact on applicants would be that those who previously qualified
for critical skills may not qualify once the amended critical skills
list is published and they would need to revert to the general work
visa category where applicable. The inability to qualify for critical
skills would also remove their eligibility to immediately apply for
permanent residence as would have been possible under a critical skills
visa.
For all categories, work can only begin once the applicant is in
possession of the approved work visa and has travelled to South Africa
to commence employment or the international assignment.
Period of stay
What are the general maximum (and minimum) periods of stay granted
under the main categories for company transfers?
South Africa Sa Migration International
An ICT work visa may be issued for a period of up to four years and is
not renewable from within South Africa.
General and critical skills work visas may be issued for a period of up
to five years.
Corporate visas (held by the employer) are issued for a period of up to
three years and are not renewable – a new application would need to be
submitted.
Individual corporate work visas may not be issued for a period
exceeding the validity period of the employer’s corporate visa and are
thus limited to a maximum period of three years subject to the validity
period of the corporate visa held by the employer at time of
application and the duration of the employment contract.
Existing work visas granted under the previous Immigration Act will
remain valid until the expiry date of the respective visa, following
which the foreign national will be required to either extend the work
visa (if the category allows for same in terms of the Act) or apply for
a new category of work visa.
All work visa validity periods will be restricted to the validity
period of the applicant’s passport if such passport is valid for less
than the maximum validity period available under the respective work
visa category.
Processing time
How long does it typically take to process the main categories?
South Africa Sa Migration International
Submissions to the South African representative abroad take an average
of 10 to 60 working days for finalisation, calculated from the date of
submission thereof; however, this is dependent upon the country of
submission.
Submissions to the DHA in South Africa, through VFS Global Visa and
Permit Facilitation Centres, take an average of 30 to 60 working days
for finalisation calculated from the date of submission thereof.
Staff benefits
Is it necessary to obtain any benefits or facilities for staff to
secure a work permit?
South Africa Sa Migration International
There are no prescribed benefits or facilities for applicants intending
to apply for a work visa to South Africa; however, certain South
African representatives reserve the discretion to request proof that
the applicant will be provided with medical insurance and accommodation
upon arrival in South Africa when adjudicating temporary residence visa
applications.
Foreign nationals intending to study in South Africa require proof of
medical insurance coverage for South Africa (international medical
coverage accepted if under the age of 18) when applying for the
required study visa.
Assessment criteria
Do the immigration authorities follow objective criteria, or do they
exercise discretion according to subjective criteria?
South Africa Sa Migration International
The mandate of the DHA is to assess all applications on an objective
basis against the criteria and requirements defined in the Act and
Regulations thereto.
Discretion is exercised by officials during the interpretation of the
Act and Regulations, which may result in a request for additional
documentation, outside of the prescribed requirements, clarification of
documentation submitted and inconsistent adjudication.
www.samigration.com

Oct 31, 2019 - Uncategorized    No Comments

High net worth individuals and investors

Foreign nationals intending to establish a business in South Africa may
apply for a business visa subject to meeting the prescribed
requirements including a minimum capital investment (5 million rand)
and proof or undertaking that 60 per cent of the employees directly
employed in the business will be South African citizens or permanent
residents.
Further, the Act prescribes that a business visa may not be issued or
renewed in respect of any business undertaking that has been listed as
undesirable in the Government Gazette after consultation between the
Minister of the Department of Home Affairs and the Minister of Trade
and Industry.
Is there a special route (including fast track) for high net worth
individuals for a residence permission route into your jurisdiction?
South Africa Sa Migration International
See question 16.
Highly skilled individuals
Is there a special route for highly skilled individuals?
South Africa Sa Migration International
Yes, there are options available under temporary and permanent
residence.
Temporary residence
Critical skills work visa
A critical skills work visa may be issued to a foreign national
provided that such foreign national falls within a specific
professional category or occupational class as determined by
publication by the DHA. The critical skills visa list, published in the
Government Gazette (on 3 June 2014), includes several new categories,
including information communication and technology (expanded list),
business process outsourcing and retains engineers, life and earth
science professionals and health professionals, among others.
A critical skills work visa may be applied for and issued upon receipt
of an offer of employment or in the absence thereof; however, the
holder of a critical skills work visa must confirm securing employment
within a period of 12 months of obtaining the critical skills work
visa.
In late 2018, a draft critical skills list was to be released for
consultation with stakeholders. The revised list would essentially
reduce certain categories, while expanding others, on the critical
skills list. The final revised critical skills list has yet to be
published and released for use.
The impact on applicants would be that those who previously qualified
for critical skills may not qualify once the amended critical skills
list is published and they would need to revert to the general work
visa category where applicable. The inability to qualify for critical
skills would also remove their eligibility to immediately apply for
permanent residence as would have been possible under a critical skills
visa.
Permanent residence
Permanent residence may be granted to a foreign national, subject to
any prescribed requirements, who demonstrates that he or she possesses
extraordinary skills or qualifications under the circumstances or as
may be prescribed. Accordingly, holders of critical skills work visas
are able to apply for permanent residence in South Africa in the
absence of any prescribed waiting period (subject to confirmation in
practice owing to the recent implementation of the Amendment Act).
www.samigration.com

Informal village springs up in Cape Town CBD as sit-in continues at UN refugee offices

A huge bag of chicken and bunches of spinach were being prepared for hundreds of foreign nationals still camping out at the UN High Commission for Refugees’ offices in Cape Town’s CBD on Monday in the hopes of being evacuated from South Africa.
Some foreign nationals want to be evacuated from SA.
A huge bag of chicken and bunches of spinach were being prepared for hundreds of foreign nationals still camping out at the UN High Commission for Refugees’ offices in Cape Town’s CBD on Monday, in the hopes of being evacuated from SA amid safety fears.
“If there is any generous country that still wants to help, we are ready to go to that place where we can feel safe,” Jean-Pierre Balous, originally from the Democratic Republic of Congo, told News24.
They are hoping that the refugee agency will assist them and have plastered the pillars at the entrance of Waldorf Arcade with pictures of people who have been injured or attacked, seemingly just because they are foreign.
A toddler wailed as his mother stirred a pot of mielie meal at the entrance to St George’s Arcade, which is off one of the cobbled walkways parallel to Adderley Street. Rows and rows of blankets and pillows, with flip-flops neatly positioned at the end of the makeshift beds, filled the arcade.

Bags at the ready in Cape Town. (Jenni Evans, News24)
Many people slept, blankets over their ears to block the cacophony of chatter around them. Children played with little toy cars and a group of women played a board game drawn on the side of a torn off piece of cardboard.
“They have to do something to make the day shorter,” said one man.
The occupation began on October 8.
Piles of luggage and more bedding are stacked against an outside pillar.
“We are ready to go,” said Balous, adding an estimated 80 children also lived there, and those of school-going age were being forced to carry on with school, even though their parents worry about them being victimised.
The scene was juxtaposed against the announcement by Cape Town Mayor Dan Plato on Monday that the Mother City was voted as one of the most beautiful cities in the world.
According to a survey done by Flight Network, a Canadian online travel agency, Cape Town came seventh out of 50 desired worldwide destinations for tourists.
Balous said a similar sit-in was being held in Pretoria and he understood that a meeting would be taking place on Monday with the refugee agency to try and resolve the situation.
They are relying on friends to have somewhere to wash and use the toilet, and some business people have taken small collections and presented it to the women in the group to purchase food.
“I go to my friend’s house to bath,” said one man.
“I have to buy my water,” said another.
But the refugee agency made it clear last week that group settlement was not an option, that it was not taking names for relocation, and there were no buses or planes coming to evacuate refugees and asylum seekers from SA.
Resettlement option
After the attacks in Katlehong recently, xenophobia was blamed, and a private airline took a group of people back to Nigeria at no charge.
The refugee agency added resettlement was only an option for a “very small number of refugees” with strict criteria, which it said most refugees do not meet. The criteria was set by resettlement countries, not the refugee agency.
It said other grievances have been raised in daily meetings with the agency.
These include access to documentation and the renewal of documentation.
The refugee agency said it was working with the South African government to find solutions as quickly as possible, adding the groups do not represent all refugees in SA.
UN High Commissioner for Refugees, Filippo Grandi, visited the country last week and met President Cyril Ramaphosa and Home Affairs Minister Aaron Motsoaledi to discuss refugees and asylum seekers in SA.
Grandi met refugees and asylum seekers in Pretoria and Johannesburg, and held a video conference with those in Cape Town.
They raised concerns over the timeframes of the asylum process, and the growing process of not being able to access and review documentation, which had an impact on them getting jobs and services.
He noted the number of resettlement places worldwide were dropping.
www.samigration.com

One in three Chinese immigrants fail to acquire Australian citizenship amid ‘unwarranted delays’

One in three migrants from mainland China has failed to acquire Australian citizenship since 2012 amid the growing political debate over Chinese influence.
The figure, the highest of any nation in the top 10 sources of new Australian citizens, follows a collapse in the number of Chinese residents approved last financial year, when only 11 per cent of these applicants were granted citizenship as Home Affairs struggled to keep up with demand.
Only two-thirds of applications for citizenship by residents of Chinese heritage have been approved since 2012.
The department pulled that figure back up this year, with 42 per cent of Chinese applications between 2017 and 2019 approved overall.
But figures, given in response to questions on notice in Parliament show that, since 2012, just 64 per cent of applicants from China were approved, compared with 69 per cent from the Philippines, 77 per cent from Britain and India, and 90 per cent from South Africa. The figures exclude migrants from Hong Kong and Taiwan.
Up to 390 Chinese migrants have had their citizenship put on hold for three years, while 9600 have been waiting for two years despite already being permanent residents for several years. At the same time, 2350 Afghani migrants have been waiting since 2015 to have their citizenship applications processed.
A Home Affairs spokesperson said the department did not treat citizenship applications from people from certain backgrounds more favourably than others.
The spokesperson said processing times could vary due to individual circumstances, including the time it takes to receive additional character and national security information from external agencies and the time it takes for the applicant to attend a citizenship ceremony or receive a citizenship certificate.
The Morrison government has blamed the delays on an increase in the complexity of applications. An Auditor-General’s report dismissed this in February, finding that “overall, the relative complexity of the applications lodged has decreased” and the backlog was due to tighter security screenings.
The Home Affairs spokesperson said the department had implemented a number of strategies to improve processing times and reduce the on-hand caseload of applications, without “compromising on national security” or “program integrity”.
The figures come amid a decline in Chinese applications overall. The absolute number of applications for Australian citizenship by residents of Chinese heritage has halved since 2017, when there were 14,707 applicants, compared with 7999 last year.
Political tension between the Chinese and Australian governments has grown since 2017, when former prime minister Malcolm Turnbull angered the Chinese government by introducing foreign interference laws. Mr Turnbull last year banned Chinese telco giant Huawei from building Australia’s 5G network due to national security concerns.
Scott Morrison, who is yet to visit Beijing since becoming prime minister in August last year, has become more aggressive in his differences with China on global trade policy since visiting US President Donald Trump in September. Foreign Affairs Minister Marise Payne has also sharpened her criticism of the deteriorating situation in Hong Kong.
The chair of the Federation of Ethnic Communities Councils of Australia, Mary Patetsos, said the federation hoped people from all backgrounds and nationalities would receive equal treatment in relation to the processing of their citizenship applications.
“I think this is what an overwhelming majority of Australians would expect as citizens of a country that strives to be fair, equitable and democratic,” she said.
“We must also remember that unwarranted delays in the processing of citizenship applications cause significant hardship for families.”
Labor MP Julian Hill, who asked for the figures from Home Affairs and has launched a parliamentary inquiry into the citizenship audit, said the delays had caused widespread anxiety among migrants in his Melbourne electorate of Bruce.
He said some applicants were unable to travel where they needed to without an Australian passport, or apply for jobs in the public service or defence force.
“Then of course there is the big issue of family reunions. People are in my office weekly because they are desperate,” he said.
“Until they are citizens, their family reunion applications will get no priority. That means they have not been able to see their wife, husband or kids for years. The sheer inhumanity of that is astounding.”
www.samigration.com

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