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South Africa losing critical skills

South Africa continues to lose critical skills. That’s according to a survey by consultant firm, Xpatweb. Courtesy #DStv403
JOHANNESBURG – South Africa continues to lose critical skills, that’s according to a survey by consultant firm, Xpatweb.
There is a global shortage of skills in professions like artisans, doctors and nurses, as well as ICT practitioners.
In South Africa, this coincides with a large number of professionals emigrating from here to greener pastures.
Xpatweb found that companies struggle to find these skills locally and the country’s visa process is making it tough to acquire them from abroad.
“We are competing for those skills globally its not just the brain drain that’s causing it is just the demand that’s outweighing the supply,” said Marisa Jacobs from Xpatweb.

Home Affairs is denying its visa process is making it hard to attract skilled workers to the country.
“If you are critically skilled first day we offer you permanent residence as an entire family, so you don’t have to worry about your spouse your kids”
The department has a list of such critical skills but a leaked draft is being criticised for being too condensed, excluding many necessary skills.
www.sami.co.za

South Africa losing critical skills

South Africa continues to lose critical skills. That’s according to a survey by consultant firm, Xpatweb. Courtesy #DStv403
JOHANNESBURG – South Africa continues to lose critical skills, that’s according to a survey by consultant firm, Xpatweb.
There is a global shortage of skills in professions like artisans, doctors and nurses, as well as ICT practitioners.
In South Africa, this coincides with a large number of professionals emigrating from here to greener pastures.
Xpatweb found that companies struggle to find these skills locally and the country’s visa process is making it tough to acquire them from abroad.
“We are competing for those skills globally its not just the brain drain that’s causing it is just the demand that’s outweighing the supply,” said Marisa Jacobs from Xpatweb.

Home Affairs is denying its visa process is making it hard to attract skilled workers to the country.
“If you are critically skilled first day we offer you permanent residence as an entire family, so you don’t have to worry about your spouse your kids”
The department has a list of such critical skills but a leaked draft is being criticised for being too condensed, excluding many necessary skills.

Understanding “cessation” of refugee status requires knowledge of core terms used by Home Affairs

There have been recent news reports about Convention Refugees and Protected Persons losing their refugee status because of something called “cessation”. Many people are confused about what cessation is and how it relates to South African immigration. In order to understand cessation, we must go back to the basic definitions of a few immigration terms.
Who is a “Convention Refugee”?
Convention Refugees are people who have left their country of nationality or country of last residence if they are stateless (having no country of citizenship). They must have a genuine fear of persecution based on their race, religion, nationality, political opinion and/or membership in a particular social group (e.g. women, families, occupational groups, homosexuals, etc.). Finally, they must be unable or afraid to seek protection from the police or government of their country of nationality.
Who is a “Protected Person”?
A Protected Person, also called a Person in Need of Protection, is someone inside South Africa who is in danger of torture, risk to their life, or a risk of cruel and unusual treatment or punishment if they were returned to their country of nationality. Convention Refugees in South Africa are also considered to be Protected Persons.
What is “reavailment”?
Reavailment happens when someone who is a Protected Person contacts or enters the country they are afraid of, or if they obtain protection from a third country.
What is “Cessation”?
Cessation happens when the South African government tries to take away someone’s Protected Person status because they have returned to the country where they said they were in danger.
Why would anyone contact or enter a country where they are in danger?
In my practice I see two main reasons why people have reavailed themselves. The first reason is that they return to their home country to visit a relative who is dying or because one just passed away. Protected Persons in this situation weigh the risk of persecution and torture against the risk of never getting to say goodbye to their loved one. Often they will take the risk and return to their home country.
The second common type of reavailment is when Protected Persons contact their country of nationality to renew a passport or obtain an identity document. When they do these things they are asking for help from a government that cannot protect them from harm or that is actively harming them.
How do people who have reavailed themselves get caught?
The most common scenario of reavailment is when someone enters their country of nationality to see a relative and gets a stamp in their passport showing when and where they entered that country. These people are likely to get caught when a Border Security Officer sees that stamp in their passport when they re-enter South Africa.
What happens when cessation proceedings start?
Proceedings will start when the South Africa Immigration Services discovers possible reavailment and takes action on behalf of Immigration, Refugees , South Africa to have a cessation hearing.
Usually cessation proceedings are brought against people waiting for South African permanent residency, though in exceptional circumstances the government can start cessation proceedings against South African permanent residents. South African citizens are not affected by cessation.
How will they prove that reavailment occurred?
The South African government will examine three main things at a cessation hearing. The first is voluntariness: did the person reavail themselves freely or were they forced to reavail themselves by circumstances outside their control? The second is intention: why did the person reavail themselves? The third is reavailment: did they actually return to their country of nationality?
What happens when someone is found to have reavailed themselves?
If the Protected Person is not yet a permanent resident, they will have their refugee status taken away and be forced to return to their country of nationality. If the Protected Person is already a permanent resident, the government will start the process of taking away their permanent resident status.
What does the UN Conventions say ?
The consequences of reavailment are serious and anyone facing reavailment proceedings should seek professional assistance immediately or risk losing their South African status.
The cessation clauses are contained in Article 1C of the 1951 Convention.[1] This provision reads as follows: This Convention shall cease to apply to any person falling under the terms of Section A if(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or (2) Having lost his nationality, he has voluntarily re-acquired it ; or (3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution ; (5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality ; Provided that this paragraph shall not apply to a refugee falling under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality; (6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence; Provided that this paragraph shall not apply to a refugee falling under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.” 5. The above clauses can be divided broadly into two categories: those relating to a change in the personal situation of the refugee brought about by his/her own acts (contained in sub-paragraphs 1 to 4), and those relating to a change in the objective circumstances which formed the basis for the recognition of refugee status (contained in sub-paragraphs 5 and 6). The last clause is commonly referred to as the “ceased circumstances” clause. Voluntary Re-availing of the Protection of the Country of Nationality 6. The protection intended here is the diplomatic protection by the country of nationality of the refugee. The notion of diplomatic protection principally relates to the actions that a State is entitled to undertake vis-a-vis another State in order to obtain redress, in case the rights of one of its nationals have been violated or have been threatened by the latter State. If a refugee re-avails him or herself of such form of protection, his or her refugee status should come to an end. 7. Diplomatic protection more broadly also subsumes consular assistance. Where consular authorities provide documents and certificates that the nationals of the country may need while being abroad, including renewal of passports, birth and marriage certificates, authentication of diplomas, etc., this may also constitute re-availment of national protection. 8. The re-availing of the protection of the country of nationality should lead to cessation where the refugee has acted voluntarily, has intended to re-avail himself of the protection of the country of his/her nationality; and has actually obtained such protection. (a) Voluntary act 9. If the refugee is compelled to act by circumstances beyond his/her control, such as at the instructions of the authorities of the country of asylum or in order to avert illegalities in regard to his/her stay there, such an act should not be considered as voluntary. The refugee must therefore truly act out of his/her own free will in approaching the authorities of his/her country of origin. (b) Intention or motive for the act 10. The intent or motive of the refugee in contacting the authorities of his/her country of nationality must be assessed in order to establish if the act is indeed undertaken for the purpose of obtaining the protection of the authorities. While it may be difficult to determine the intention or motive of the refugee, every case has to be assessed on its own merits and on the basis of the particular act of the refugee. Most ordinary contacts with diplomatic missions for the purpose of certification of academic documents, or for the purpose of obtaining copies of birth, marital, and other records, are not considered as acts which carry the intention of re-availment of the protection of the country of origin. Applications by refugees for the issuance or extension of national passports will normally imply an intention to entrust the protection of their interests to, or to re-establish normal relations with, their country of nationality. This implication may, however, be rebutted by the refugee. There may be cases where obtaining or renewing a national passport should not be considered as indicative of an intention to re-avail of the protection of the country of nationality. The key issue is the purpose or reason for which the passport was obtained or renewed.

ConCourt ruling on foreign spousal and chilren visa laws major impact – apply from a tourist within South Africa

A week ago, the Constitutional Court set the state a deadline to change immigration regulations that currently require foreign spouses or children of South African citizens to leave the country to renew their visitor’s visas. They can now apply with immediate effect to change from a tourist visa to relatives visa
The court declared the rules constitutionally invalid because in effect, they separate families.
Constitutional Court gives state two years to amend foreign spousal visa laws
Immigration attorney acted for the applicants in their appeal to the highest court in the land.
He explains that while the minister now has two years to change the regulations, in the meanwhile, the missing exceptional circumstances for foreign spouses and children of South Africans must be ‘”read” into the appropriate regulation.
Any foreign spouse or minor child of a South African person is affected – whoever comes into South Africa on a visitor visa may now change status within the country instead of having to laboriously and at great expense return to their countries of origin to do so.
From the moment that Constitutional Court order was handed down – a week ago, last Friday – we give the minister 24 months to actually write that language in and to make a set of constitutionally compliant regulations..

On 28 June 2019 at 10h00, the Constitutional Court handed down judgment in an application for direct leave to appeal against a decision of the High Court, Western Cape Division, Cape Town (High Court). The applicants sought to have regulation 9(9)(a) of the Immigration Regulations declared unconstitutional on the basis that it limits the constitutional right to dignity by limiting the rights of persons to marry and cohabit, and the best interests of children by limiting their rights to family care.

This matter involved two different family units, each of which comprises a foreign spouse who is married to or is in a life partnership with a South African citizen or permanent resident. The first applicant, Ms Nandutu, is a Ugandan citizen who resides with and is married to the second applicant, Mr Tomlinson, a South African permanent resident. The third applicant, Mr Demerlis, is a Greek citizen, who resides with and is in a life partnership with the fourth applicant, Mr Ttofalli, a South African citizen.

Ms Nandutu entered South Africa on a temporary visitor’s visa that was issued under section 11(1) of the Immigration Act (Act). At the time of entering South Africa, she was pregnant with Mr Tomlinson’s child. Several months later, Ms Nandutu married Mr Tomlinson and gave birth to their son. In order to be able to remain in South Africa with her husband and son, Ms Nandutu applied for a “spousal visa” under section 11(6) of the Act. Her application was rejected on the basis that in terms of section 10(6) of the Act, temporary visa holders are not able to apply for a change in visa status from within South Africa, and must make those applications from outside South Africa.

The majority judgment, penned by Mhlantla J and concurred in by Cameron J, Jafta J, Khampepe J, Madlanga J, Nicholls AJ and Theron J, allowed the applicants to appeal directly to the Constitutional Court. The majority declared regulation 9(9)(a) invalid and inconsistent with the Constitution, in that it unjustifiably limits the constitutional right to dignity and the right that a child’s best interests are paramount in every matter concerning the child. The majority relied on the Constitutional Court’s previous judgment in Dawood. In that case, the Court dealt with a legislative regime that required foreign spouses to have valid temporary residence permits in order to apply for immigration permits that would allow them to reside permanently in South Africa. The legislation required that an applicant be outside the country at the time of the grant of an immigration permit. The legislation also created an exception to this in relation to, amongst others, spouses and dependent children. An applicant also had to be the holder of a valid temporary residence permit right up to the time of the grant of the immigration permit. A difficulty arose from the fact that the issuing of this temporary residence permit was subject to the exercise of a discretion by immigration officials. And this the Court held to be unconstitutional as there was no legislative guidance on how the discretion was to be exercised. Also, the Court held the entire regime to be constitutionally invalid, as it unjustifiably limited the right to dignity by creating an onerous burden on families who would have to separate as a result. This, the Court found, created practical and physical barriers to the enjoyment of one’s familial rights (and, by extension, one’s human dignity), and also obstructed a spouse’s ability to carry out fundamental aspects of their spousal obligations and the ability to live together. Relying on this Dawood holding, the majority in this matter concluded that regulation 9(9)(a) limited the right to dignity and right that a child’s best interests are paramount in every matter concerning the child.

Accordingly, the majority declared regulation 9(9)(a) constitutionally invalid, suspended the declaration of invalidity for 24 months and ordered a reading-in on an interim basis of words that have the effect of adding to the exceptions under the regulation spouses or children of South African citizens or permanent residents. The effect of this reading-in was that, during the period of suspension, spouses or children of South African citizens or permanent residents would not have to depart from South Africa when applying for a change in visa status.

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Greece vows to speed up migrant deportations

Officials from Greece’s new conservative government have vowed to speed up the asylum process for migrants and refugees and restart deportations to neighboring Turkey despite renewed tension between the two NATO members.
Prime Minister Kyriakos Mitsotakis met in Athens Monday with Dimitris Avramopoulos, the Greek commissioner at the EU for migration, home affairs, and government officials later said that discussions focused on rapidly reducing a backlog of asylum applications and a return to the terms of a 2016 European Union-Turkey agreement that allow for the deportation of migrants whose applications have been rejected.
Mitsotakis’ conservatives won general elections this month on a pledge to cut taxes and take tougher line on migration. Greece and Turkey remain at odds over a drilling rights dispute around the war-divided island of Cyprus.
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12:45 p.m.
Police are evicting migrants and Italians from an abandoned former school on Rome’s outskirts in the latest operation to empty occupied buildings of migrants and squatters.
Residents set fire early Monday to mattresses and other garbage to form a barrier and prevent riot police from entering the building. But authorities doused the blaze and proceeded with the eviction.
Interior Minister Matteo Salvini, who has championed a crackdown on migrants, said Italy had “no tolerance” for anyone who illegally occupies abandoned buildings. He said the structure was dangerous and put women and children living there at risk.
City hall officials said they were providing alternative housing for the nearly 200 people affected.
Rome has a long history of squatters, with Italians and migrants alike lamenting a lack of affordable housing.

Luxury Blue Mountains hotel group clawing back wages from migrant workers

The Department of Home Affairs and the Fair Work Ombudsman are investigating a luxury Blue Mountains hotel group after a Sun-Herald investigation found it is clawing back wages from migrant workers through overpriced accommodation and unpaid overtime.
The Escarpment Group owns Lilianfels and Echoes in Katumbi, the Hydro Majestic in Medlow Bath, the Parklands Country Garden and Lodges in Blackheath and the Convent Hunter Valley. The Fair Work Ombudsman (FWO) raided the group’s operations in Katoomba and the Hunter Valley last month.
The Convent Hunter Valley was raided last month. Top right: the sleeping quarters, top left, hours worked.
A 14-month Sun-Herald investigation has found the Escarpment Group forces workers on 407 Training Visas to return $480 out of their wages each week to their employer for a shared bedroom and meals that are not always provided. Employees are also not paid for up to three hours of overtime they work each day.
The migrant staff who worked at the group’s properties said these conditions made them feel like “prisoners”. Most workers interviewed by The Sun-Herald did not want to be identified because they feared reprisals. One said: “For me I am in a first world country working in third world [conditions].”
The Sun-Herald investigation found the compulsory room and board charge is automatically deducted from staff wages and is $60 more than the workers would pay to rent an entire house in the same Katoomba/Blackheath area. The so-called interns are also asked to sign time sheets that record 38 hours of work a week instead of the up to 50 hours they actually work. The 12 hours of unpaid overtime are recorded on a second set of handwritten time sheets and rosters.
Former hotel staff, Awindam Biswas describes how he was exploited by the hotel chain he worked for.
The Escarpment Group denied “underpaying or exploiting” any of its employees or interns, including those on 407 visas. It said it was being investigated by the Department of Home Affairs and Fair Work.
“Escarpment Group is co-operating with that investigation and believes that it has acted in accordance with the applicable industrial laws,” a company statement said. “The investigation is continuing, therefore it would be inappropriate to make any further comment at this time.”
The Fair Work Ombudsman (FWO) also refused to comment on its ongoing investigation. The Department of Home Affairs referred inquiries to Australian Border Force, which said it could not comment as the matter was part of an ongoing investigation.
However, a Home Affairs spokesperson said 407 visa holders have the same rights under workplace law as Australian citizens and it “takes any allegations of misuse of a visa or exploitation of a visa holder seriously”.
Professor Allan Fels who chaired the Migrant Workers’ Taskforce, which reported to the Morrison government in February, said The Sun-Herald investigation revealed the practice of underpayment “is still pervasive”. He said the government had adopted all his recommendations including jail sentences for serious wage theft, but “speedy implementation” was now needed.
Professor Fels said the hotel group’s conduct was “an important example” that showed exploitation was not confined to foreign students and working holidaymakers who were the subjects of his inquiry.
“It covers other categories of temporary migrant workers,” he said. “It looks to be highly exploitative, highly calculated and a deliberate attempt to break the law.”
The Sun-Herald interviewed nine Escarpment Group hotel workers in Katoomba and examined the employment records of seven on the 407 Training Visa including copies of their pay slips and time sheets which recorded 7.3 hours of paid work per day and 38 hours a week. Signed handwritten time sheets and rosters showed they worked up to 11 hours a day.
Promise of training with luxury hotel group entraps visa workers
Australian citizens who worked at the hotel said they were paid properly but were concerned their co-workers on training visas being underpaid and forced to live in overpriced accommodation.
Payslips The Sun-Herald has seen record 76 hours of work per fortnight and do not record the automatic $960 fortnightly deduction for rent. This charge only shows up on their bank statements. Pay slips from last year show the $960 deduction.
After the rent is taken out of their wages, the interns are left with a net salary of about $16,000 plus $5000 in superannuation – about $300 in their pocket each week.
Employment lawyer Sharmilla Bargon from the Redfern Legal Centre said employers have a legal obligation to keep accurate time sheets and wage records, and payslips that reflect the total number of hours worked. She said an employer should not generally take money out of an employee’s wages, but if they did, the amount “should absolutely be recorded on the employee’s payslip”.
“If this amount isn’t recorded, the employer may have contravened employment laws,” she said.
The Sun-Herald first contacted FWO about the Escarpment Group of hotels in March alerting it to allegations that visa workers were forced to live in overpriced accommodation, but it had nothing to report. Then, last month, it confirmed it was investigating the group and had audited its hotels in Katoomba and the Hunter Valley. It refused to comment further on the investigation.
The Sun-Herald can reveal the FWO has been contacted by at least two of the hotel workers who have evidence of pay slips, rosters, bank records and two sets of time sheets, one with correct times and the other with false times. The workers said they were told to call Legal Aid instead. Legal Aid then provided forms to send to the Fair Work Ombudsman.
“Their advice wasn’t very helpful and they did not understand our situation. That was very disappointing,” one said.
The Fels report noted the FWO needed to have a stronger profile with migrant workers and a “stronger enforcement response”.
While Australian workers might experience underpayment, Professor Fels said they “are not typically exploited over accommodation”.
“The foreign worker coming here is much more exploitable because of their lack of personal supports, their non-access to accommodation, their poor knowledge of the law, the unlikelihood they will report the offender for fear of losing their working rights,” he said.

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