Immigration law changes cause havoc for life partners

2014-02-26 07:01

Far-reaching changes to South Africa’s immigration laws were published in the Government Gazette on 14 February 2014. The changes, which are expected to come into effect from 1 April 2014, are expected to affect the inflow of valuable foreign skills and talent into the country.

Sectors most affected: Foreign nationals in South Africa; South Africans in relationships with foreign nationals; exceptionally skilled foreign nationals; immigration industry

Headline changes include:

Cosmetic changes:

  • Visas will in future be called “port of entry visas and transit visas”.
  • Temporary residence permits will in future be called “visas”. Procedural changes:
  • Visas (including visitor’s visas) must be applied for in person and from the applicant’s home country. Applications for extensions and renewals of visas may be made in person from within SA.
  • Holders of visitor’s visas and medical treatment visas may not apply for a different visa from within the country.
  • Fingerprints are required from all visa applicants.
  • Undertakings to submit police clearance certificates within 6 months after issuance no longer accepted.

Substantive changes:

  • Stricter measures to combat child trafficking.
  • Immigration practitioners scrapped.
  • Foreign nationals must now prove cohabitation with their South African partners for at least 5 years before becoming eligible for visas. The current requirement is 3 months.
  • Exceptional skills permits no long exist. Freelancing sports stars, entertainers, musicians and other individuals with unique skills, which are not listed as “critical” have few options for long- stay visas.
  • Permanently-employed South Africans must make up at least 60% of the total staff compliment in businesses owned wholly or partly in South Africa by foreign nationals who live here.
  • Advertisements in national print media no longer required for general work permit applications.
  • Intra-company transfer visas now issued for up to four years, instead of two.
  • Habitual overstayers can be banned from future visas.

New regulations and amendment acts will become effective

The new regulations to the Immigration Act 13 of 2002, the first major change to South Africa’s immigration policy since 2004, will have far-reaching implications for foreign nationals wanting to work, study, run businesses or be with loved ones in South Africa.

The 2007 and 2011 Immigration Amendment Acts, which were assented to in June 2007 and August 2011 respectively, but have never come into effect, are also expected to be proclaimed and come into effect.

While many of the changes brought about by the new immigration laws will be welcomed, the wisdom of others will be subject to criticism.

Welcome changes

Temporary residence permits, which allow foreign nationals to work, study, invest in new and existing businesses and retire in South Africa will in future be called “visas”. This is in line with international convention.

Immigration practitioners, who have been left entirely unregulated and often criticized by immigration attorneys, have been scrapped. While it is clear from the new legislation that no new immigration practitioners will be registered, it is unclear what will happen with immigration practitioners who are already registered.

Habitual overstayers of visas and permits, who until now have been allowed to re-enter and reapply for further permits on the simple condition that they settle their outstanding fines, can in future be declared undesirable foreigners. This is expected to alleviate the frustration of immigration officials who have found that immigrant workers, especially from neighbouring countries, often choose to work in the country illegally. Rather than go through the process of obtaining work permits, they would, when caught, simply leave the country, settle their fines and return. Under the new policy, foreign nationals who overstay their visas a prescribed number of times will be banned from future entry into the country.

Stricter requirements have also been set out in respect of children who travel without their biological parents. In future, adults travelling with children will need to produce affidavits from parents proving permission for the children to travel. It is hoped that this measure will help to combat South Africa’s growing problem with child trafficking.

Intra-company transfer work permits, which are commonly used by multinationals to second workers to South Africa, will in future be issued for up to four years, up from two.

Questions arise

Other changes are expected to be less well received.

Arguably the most significant change is that all visas, including visitor’s visas, must in future be applied for in person. Under current policy applicants are allowed to submit applications by mail or courier service. This avoids the need to travel thousands of kilometres to a nearest foreign mission. This is especially useful in Australia, where the only foreign mission which accepts temporary residency applications is situated in Canberra. Under the new policy, prospective visitors from Perth will need to travel the breadth of the continent, a distance roughly equivalent to Kinshasa from Cape Town, in order to apply for South African visas.

Predicament for unmarried couples

Another change which is expected to be met with severe criticism is the five year cohabitation requirement for unmarried couples. Under current policy, unmarried couples who have lived together for three months may apply for life partner visas. More often than not, the life partner visa is the only option available to foreign nationals in bona fide relationships with South African citizens. The new policy will effectively prevent many South Africans from having their foreign national partners with them in South Africa.

South Africans living abroad with foreign national partners will be forced to wait until after they cohabitated for five years before they will be able to return home with partners. The message to young, unmarried couples living abroad appears to be: “Neither you or your foreign national loved ones are welcome in South Africa before you have lived together for five years. Find another country to live in together for five years, then you can return home”.

Even couples living in South Africa face a predicament. If a couple has only cohabited for three years and the foreign national’s life partner permit runs out, then they will not be able to renew it. If the foreign national does not qualify for a different visa, she will need to leave the country. The constitutionality of this requirement is highly doubted.

Exceptionally skilled individuals no longer welcome

A further puzzling change is the scrapping of exceptional skills work permits. Under current policy, individuals with exceptional skills could enter the country on exceptional skills work permit permits regardless of whether they had already secured employment or not. This was often the only permit available for celebrated sportsmen and women, designers, artists, specialist medical practitioners and chartered accountants who had not yet been offered employment. Under the proposed policies these people will not qualify for permits as their skills are, although exceptional, not considered “critical”.

Conclusion

While some of the policy changes will be welcomed, others will be met with scorn. South Africa appears to have turned a blind eye to electronic means of communication and the efficiencies of the global courier network. Instead, the Department of Home Affairs has opted to step into the past by requiring visa applications to be submitted in person. Personal submission of documents offers no benefit whatsoever over distance submissions when simple biometric and electronic verification methods are employed.

The overwhelming majority of instances of immigration fraud occur right here in South Africa. Anti-fraud measures could easily have been targeted at home and other high risk territories. Regrettably, applicants from territories such as Australia, New Zealand, the United States, Western Europe and Great Britain, where very few instances of immigration fraud occur, have now been placed on the altar for the sins committed elsewhere. It would have made infinitely more sense for Home Affairs to require applications submitted in areas prone to fraud to be submitted in person, while allowing applications submitted abroad, especially in low fraud risk territories, to be received by courier, post or even electronically.

The public has until Friday 28 February 2014 to comment on the proposed regulations.

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