During all our engagements with the Department of Home Affairs in South Africa during the past months, it was made clear that they are working on new legislation as well as regulations but such could should only be expected after our general elections in April 2019.
It came therefore as a rather big surprise when the Department published the “Draft First Amendment of the Immigration Regulations, 2014” in the Government Gazette on November 29th 2018.
So, what has the Department of Home Affairs dropped on our sector rather unexpectedly? All Immigration Practitioners were worried.
The good news is: not much has changed.
This first amendment is rather fixing technical mistakes in the Regulations such as numbering, wording and putting already published changes into the legislation. The only relevant material law changes are regarding:
- child travel
- work visas
- permanent residence based on a South African relative.
Child travel: Nothing has changed for a child who is a South African citizen. He or she must still travel with a birth certificate or passport containing the details of the parent or parents of the child. The requirement of an affidavit has been dropped, but a letter of consent is still required when travelling alone or with one parent only.
A child who is not a South African citizen and travelling with one parent may, read not “must” anymore, be required by an immigration officer to produce a birth certificate. However, according to the new Regulation 6 (12B) (c) (iii) any person travelling with a child who is not a South African citizen is strongly advised to be in possession of the same documents, which were required before this Amendment. To make it clear: When both parents travel with a foreign child the birth certificate requirement is not applicable anymore and it is also not strongly advised to take it with. Therefore for most tourists visiting South Africa this amendment has a real positive effect. Single parents travelling should still take all documents with, which were also required before.
Life-Partnerships: Applicants in a permanent relationship may be interviewed now when submitting their visa. The previous “must” has been replaced with a “may”. The legislator is following the current practices of the administration.
Work Visa: The new version of Regulation 18, covering work visa, determines that the previous Department of Labour certificate will be replaced by a letter issued to the prospective employer. This means that an application for a general work visa can only be submitted when the Department of Labour provides the employer with such recommendation letter. The positive practical change is that the prospective employer will know if the application was recommended or not before the foreigner applies for his or her work visa and therefore saving unnecessary costs and time in case of a negative recommendation of the Department of Labour. How the departments of Home Affairs and Labour implement this change in practise needs to be seen. The current practise was that the Department of Labour informed the Department of Home Affairs about the outcome of their recommendation only and the applicant would only know the outcome after adjudication of his or her work visa application.
We are not sure if the second change is a drafting mistake or fully intentionally. The amendment explicitly replaces subregulation 3 and not only 3 (a). This would mean that the SAQA, CIPC and two undertakings previously regulated in subregulation 3 (b), (c), (d) and (e) would fall away. Unless the amendment should actually read “Regulation 18 of the Regulations is hereby amended by the substitution for subregulation (3) (a) of the following…”.
The last relevant change could be a very important one, in particular for a foreign parent of a child who is a South African citizen. The previous version of Regulation 23 demanded in subregulation (7) that the citizen is able and willing to support and maintain the foreign relative making the application. In case of minor children the Department was of the opinion that they cannot be legally willing to support the application of their foreign parent and therefore regularly rejected applications of foreigners based on a South African child. This practise raised some serious Constitutional concerns. Upon first reading of the Amendments it seems that this route is open now.
One positive amendment for churches is that religious leaders can now apply for a long-term visitor visa for up to three years. Formerly they had to apply for a waiver and then do a general work visa. Other amendments regarding the long-term visitor as well as business visa are purely of a cosmetic nature and not substantial. These amendments came into operation on 1 December 2018.
Please contact us, if you have any questions regarding the above changes or any other immigration related questions for South Africa and other African countries. The IBN Team will be delighted to answer them.
by Andreas Krensel