On Wednesday, 2 July 2014, IBN co-hosted a seminar on the new immigration regulations in cooperation with SA top law firm Cliffe Dekker Hofmeyr and the Dutch and Belgian Chambers of Commerce in South Africa.

Our guest speakers were:

Advocate T. Sebelemetja, director drafting (legal services) and colleagues

Ms. W. Barnard, deputy director investment promotion

Ms. M. Bobani, director LMES and colleague

It was of great value that very competent representatives of the three government departments who play a role in the issuancing of visas and permits to foreign nationals, were present. This led to interesting discussions and provided the audience with a holistic understanding behind the new regulations.

The audience consisted of invitees through four different channels: IBN, Cliffe Dekker, Dutch- and Belgian Chambers of Commerce and totaling over 80 people.

A waterfall of questions was directed to the speakers, who handled the critical and sometimes frustrated audience exceptionally well. There was a spirit of co-operation and wish to get things right.

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Some relevant information that came out:

Department of Home Affairs (DHA):

Exceptional skills and quote work permits (issued under the old regulations) that are about to expire can only be converted to a critical skills work visa if the applicant possesses skills that fall under any of the categories as recently published in the critical skills list. Applicants who do not fall in any of the categories will have to apply for a general work visa.

Under the old regulations intra-company work permits were issued for a maximum period of 2 years. The new regulations stipulate that such category visa can now be issued for a period not exceeding 4 years. Intra-company work permits that were still issued under the old regulations and are about to expire cannot be extended with another 2 years from within South Africa. However it is possible to leave the country and lodge a complete new application from the country of origin for a period of max. 2 years.

 IBN co-hosted seminar in progress

Parents, working and residing in South Africa on valid work visas who have left behind their minor in the previous country of residence can only obtain a relative’s or study visa for the minor, by accompanying the child to the South African Consulate in the country of residence. The child cannot apply without the parents physically present, nor travel to South Africa first and apply from within South Africa. IBN however reads this particular section of the regulations differently, as in a typical context the child of a work permit owner does not know yet, which school it will attend. Also, there are provisions for spouses to seek employment, which in practice only happens, once the family is settled in South Africa.

Department of Trade and Industry (DTI):

Foreign business owners, starting business in South Africa have to apply for a business work visa.

Currently the minimum required investment amount that has to be brought in and invested in the South African business is set on R 2.5M. This is expected to increase significantly to an amount of R 5M.

At the time of the seminar this amount was not yet published by the Minister.

With the coming of the new immigration regulations a business plan is no longer one the requirements by the DHA. However the DTI does still require business plans as a means to determine whether a business is feasible. Based on the evaluation of the DTI a letter of recommendation is issued.

This letter needs to be added to the application for the temporary business visa, which will be processed by the DHA.

Department of Labour (DoL):

The Department of Labour has received a more inclusive role in immigration with the coming of the new immigration regulations.

General work visa applications (previously general work permit) now require a certificate issued by DoL.

The requirements for obtaining such a certificate are quite stringent and involve a lot of documentation also from the prospective employer.

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Corporate work visa applications (previously corporate work permit) require involvement by both the DTI and DoL before being processed by DHA. The DoL administers a national skills database in which unemployed skilled South African citizens and permanent residents will be registered.

In case of corporate work visa applications by the South African prospective employer, the database will be consulted in order to determine whether the required skills are locally available.

In general, the DTI and DoL will assess the individual case in more detail. Is there really nobody locally who can do the job? Is the envisaged business really feasible? These are questions which will need to be answered profoundly in future.

by Dirk Meissner

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