THE NEW IMMIGRATION AMENDMENT ACT, 2011 – SHORT TERM PROSPECTS?

The 2007 and 2011 Amendments to the Immigration Act, along with a wholly revised set of regulations were promulgated on Thursday 22 May and came into effect on Monday 26 May 2014.

IS THIS GOOD NEWS OR BAD NEWS?

I think for now that we need to focus on the short term impact of the new Act.

Commentators seem to be agreed that the Amendments appears to have been rushed, prematurely into operation.   That is not good news because mistakes are then inevitable – and there are more than a few.

WHEN IS A PERMIT NOT A PERMIT- WHEN IT’S A VISA:

We start by looking at the revised arrangements for temporary residence permits.  In future “permits” will be known as “visas”.    This is the case no matter for how long they are or where they are issued.

And the term “permit” will refer exclusively to the authorisation granted to a person for permanent residence.

THE VISA VISTA?

Visas for the self-employed, the retired and the independently wealthy require that the applicant shows the existence of a specific investment or income level.  None of these has been gazetted.  As a result, the applicant does not know what amount is required to be shown and the Department cannot adjudicate the application.  For now, then, these visas are ‘not available’.

The critical skills work visa is intended to properly facilitate securing “critically-needed” skills.   However the list of critical skills was also not gazetted!  So you can’t apply for a critical skills visa yet.

In a flashback to the apartheid era, a general work visa – the backbone of the visa regime – requires  (if questionably) that the Department of Labour issue a certificate that recommends the approval of the visa.  But what must be submitted to the Department of Labour to get that recommendation, remains a closely guarded secret.   So don’t apply for a general visa either, just yet.

The regulations also do not allow for any period of transition, however brief, between the old and the new ‘regimes’.  Unless the Department ‘intervenes’ this will cause all sorts of troubles and unnecessary embarrassment.

Persons in the country now on their short term visitor visas (for periods of three months or less) cannot apply, from inside the country, to change those visas to any other category of visa unless there are “exceptional circumstances”.   There is a very limited list of what are “exceptional circumstances”.  These persons must now return home and apply at their nearest Embassy or High Commission for their new visas.

If you are already in SA on any long term visa for work, business, study etc, you are allowed to apply from inside the country to extend those visas.  That is, unless you are on an intra-company transfer visa.  For reasons best known to the Department, those visas are again non-extendable although (a) that is not what the Act says and (b) they are now to be issued for four years and not just two years.

People can also apply from inside the country to change the status or conditions of their long term visas.   But these applications must be submitted not later than 60 days before the current permit expires.  So if a person’s current visa expires on or before 23 July 2014, in the absence of Ministerial intervention, this provision could be bad news especially for employers and employees.  Affected staff and families are potentially faced with long and expensive journeys home and possibly protracted delays whilst the application is considered.   Some Embassies say that – even before the anticipated, significantly increased traffic at many Embassies – they already take 10 weeks or more to decide visa applications.  On top of that, the training of some of the Dirco officials in the Embassies who render consular services, can leave much to be desired.

MINORS TRAVELLING OVERSEAS MUST HAVE UNABRIDGED BIRTH CERTIFICATES:

Another questionable regulation is one which requires all children entering South Africa, to have unabridged birth certificates with them – whether or not they are travelling with their parents.

This applies even if the parents and children are South Africans.  This makes a nonsense of the legal status of the South African passport – and the ID (if the child is 16 or 17 years old).  These documents are apparently worthless when it comes to travelling.   Remember, it can take 3 or 4 months – or worse – to get an unabridged birth certificate from Home Affairs.

The Department may have overlooked that section 21(3) of the Bill of Rights guarantees the right of every citizen to enter South Africa.

This was probably introduced – and, if so, laudably – to control trafficking and child kidnapping.  But is that problem so extensive that the veracity of Home Affairs-issued ID documents and passports are to be disregarded.  Why is the birth certificate – a document without photographs or other biometrics – suddenly any more secure?  Are South African parents and their children to be refused entry to South Africa – and the Bill of Rights ignored?

PEOPLE NOW OVERSTAY THEIR PERMITS AT THEIR PERIL!

A major (and welcome) change comes in the form of the penalties that apply for overstaying.

A person who overstays the term of his/her visa – by as little as a day and up to 30 days – “may be declared undesirable” and excluded for 12 months!  Do it again within a 24 month period and the person faces exclusion for 2 years.  And overstaying in excess of 30 days may result in “undesirability” and exclusion for five years.

Does “overstaying” include the period between the expiry of the current visa and the issue of the new one – assuming one applies for the new visa more than 60 days before the expiry date of the current visa, and the new visa is not ready in those 60 days.  Hopefully the term “may”, means that there will be a discretion to exclude persons falling into this situation.

By Chris Watters

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