The Draft Immigration Regulations published in the Government Gazette in February for public comment have been criticised by various immigration specialists, who have highlighted specific flaws that may contravene the Constitution and could hinder economic growth.

Immigration attorney Julian Pokroy tells Engineering News that the draft regulations have been compiled hastily, resulting in a lack of consideration to the constitutionality of certain provisions.

“Several provisions are also defective in administrative law and conflict with the current Immigration Act. The regulations fail to promote the importation of foreign skills and investment into South Africa, which is certainly one of the greatest purposes of the Immigration Act,” he says.

Immigration practitioner Robbie Ragless, of New World Immigration, agrees and asserts that the proposed cohabitation requirement for spouses and life partners is unconstitutional.

Under the spousal visa requirement, the regulations stipulate that foreign nationals now have to prove they have been in a cohabitative relationship with a South African citizen for at least five years before an application can be made for a temporary residence visa.

Previously, the application process and requirements of proving cohabitiative relationships for at least five years was only required for permanent residence. An application for temporary residence merely required that a foreign national and a South African citizen prove their relationship and cohabitation.

Pokroy believes that this will be one of the first issues to be challenged if this change in the Immigration Regulation comes into effect.

Meanwhile, Global Migration South Africa MD Leon Isaacson says the draft regulations are not cohesive and that an applicant who has been in a spousal relationship with a South African citizen for four years and is established in the country, with children, will have to leave the country, wait a year and then apply for a visa.

“This will not pass the constitutional test. There are no transitional provisions, which means that current permit holders will not be accommodated if they find that their old permit cannot be extended under the new regulations or that it may only be extended in such a way that the process is prejudicial to the person, his/her family and the entities which they work for in South Africa,” he highlights.

Isaacson adds that, ironically, in many cases, these skilled applicants are working on government projects or are employed directly by government departments as specialists.

Business Ventures
The draft regulations have also made the processes and procedures for obtaining work visas and business visas unduly burdensome, says Julian Pokroy Attorneys partner and attorney Tarryn Pokroy Rietveld.

Home Affairs Minister Naledi Pandor stated at a media briefing in February that under the new regulations, the feasibility of the prospective business venture and the benefits it would have for the South African economy would be assessed before a business visa was granted. A recommendation from the Department of Trade and Industry (DTI) would also form part of the application.

The Immigration Act further requires that the Minister should occasionally, and after consolation with the Trade and Industry Minister, gazette a list of “undesirable businesses” that will not be granted or allowed to renew business visas.

Rietveld believes that “the red tape” and “bureaucracy” that will now be imposed in respect of these applications will make the process restrictive.

Isaacson states that the Department of Home Affairs (DHA) is trying to eliminate questionable business activities in certain industries and the only way the department has put forward is to develop a negative list, rather than a positive one, which may result in challenges at a later stage.

When asked at the media briefing in February what the fate of foreign nationals with successful businesses would be if their businesses were deemed undesirable, Pandor stated that if a foreign national did not have a legal business permit, he or she would be “considered illegal”.

She said that, owing to poor capacity in immigration, particularly by the inspectorates, South Africa had allowed the continuance of several illegal practices in the country; however, the country needed to develop capacity in immigration to address illegal practices.

Pandor further stated that South Africa had allowed illegal immigrants to establish businesses without permits and to obtain permits fraudulently, and employers to employ immigrants. She added that these issues needed to be attended to by strengthening immigration laws in South Africa.

“No country allows itself to have immigration laws abused and neglected in the way that, to some degree, South Africa has allowed [this to happen]. It is an area that, I believe, we have to pay attention to. Any person who holds a permit that is going to expire has to apply for a renewal in terms of the new regulations,” she expressed.

Foreign Skills and Investment
Pokroy notes that the preamble of the Immigra- tion Act specifies that its purpose is to allow for the importation of skills, specifically where such skills are not available in South Africa.

He says this should be the remedy to the lack of skills in the country and that the process should be a facilitated one with respect to skills that are not readily available or skills that are not being produced from within South Africa.

“A foreign national should be offered a facilitated process to obtain an appropriate work visa to allow such an individual to take up employment in South Africa and to specifically ensure and allow for that applicant to train South African citizens for similar positions,” Pokroy suggests.

Immigration law attorney Chris Watters agrees and states that one has to look at the massive impact that foreign-born entrepreneurs have had in other economies to appreciate that South Africa needs to rethink its fascination with “big business”.

Pokroy adds that the difficulties for business applicants would be to prove that at least 60% of their staff, employed or yet to be employed, will be South African citizens or receive a permanent residence status. Although this is a positive requirement that will ensure the employment of South Africans, the timeframes within which applicants have to comply with these requirements are limited.

Further, the requirement for obtaining a recommendation from the DTI will specifically involve having to prove the business involvement is in the national interest. The Immigration Act also restricts categories of businesses and, in doing so, restricts the type and scope of business visa that would be granted.

“In respect of acquiring foreign skills, the process has certainly been made more difficult by adding an additional requirement, such as obtaining confirmation from an accredited professional body, council or board recognised by the South African Qualifications Authority, confirming such applicant’s skills or qualifications and appropriate postqualification working experience,” Pokroy says.

He notes that it is unclear what the time delay would be in terms of having to comply with the additional requirement.

Undesirable Persons
Watters says an applicant staying in South Africa longer than the stipulated term of his or her permit will now constitute a major offence.

Pandor stated in February that the list of “undesirable persons” did not currently include “outstanding warrants or convictions in South Africa or foreign countries” for persons regarding human smuggling or trafficking.

The new regulations aim to address this and have included genocide, terrorism, murder, torture, drug-related charges, money laundering or kidnapping in the offences committed by immigrants.

Currently, those who overstay the period as stipulated by their permits are fined. However, Pandor stated that this was not a strong enough deterrent, as the fine had been enforced only when a person applied to return to South Africa and not immediately upon detection of an overstay.

“We have introduced an amendment to the effect that any person who overstays for a particular number of days at a time will now be listed as an undesirable person. The new regulations will bring the Immigration Amendment Act of 2011 into force and usher in a new era of secure, efficient and sound management of international migration,” she declared.

Watters states that if one has good cause, a declaration of undesirability may be lifted; how- ever, in terms of current practice, it rarely takes less than a year to have such a status lifted, assuming there is a good cause. He adds that if the DHA disagrees with the good cause provided, the only practical solution may be to approach the courts.

Ragless notes that another problem area is the introduction of mandatory submission procedures that include biometric testing, such as fingerprinting, which would entail every applicant applying in person at the DHA, should the applicant want to extend his or her visa or change his or her status.

The new regulations also require that travellers on a visitor’s or medical permit will have to apply to change their status or conditions from outside South Africa.

Rietveld believes this is a positive change, as it will prevent the extensive abuse of the change of status by an applicant who enters South Africa as a tourist with the aim to take up employment once in South Africa.

However, the retraction of allowances to change from a visitor visa to another type of work permit will mean that companies that employ foreign nationals and send foreign nationals to South Africa will have to work months in advance to change the visas, as the applications for visas and permits will have to be made at the respective South African embassies or consulates abroad.

“A huge trend is for companies to send employees to South Africa at short notice and change their status to a work permit while the employee is in the country. This will not be allowed going forward,” cautions Ragless.

Rietveld says staff at the relevant Home Affairs offices or embassies abroad handle applications differently to what is prescribed by the Immigration Act and its regulations, which makes it difficult for individuals to navigate through the processes.

However, Watters believes that, while these differences in the handling of applications are challenging, there have been some significant improvements.

He hopes that the DHA will stand by its undertaking to establish a network of stakeholder forums to provide a meaningful sounding board to which the department can respond when practical problems emerge in the application of the new regulations.

Corruption and Efficiencies
Ragless believes that corruption in the DHA is rife and the introduction of an independent submission centre would, therefore, make practical sense. However, he states that some practitioners believe that the inclusion of this independent commercial arm could result in further corruption.

Isaacson says the designation of a private operator to handle the front-office functions for Home Affairs offices abroad may improve efficiencies but the DHA and operators have indicated that they would charge additional fees, which is not lawful.

Meanwhile, Pokroy says implementing these proposed regulations will make processes more difficult. While there are certain improvements to the proposed amendments, such as the proposed increase of time for intra-company transfer work visas from two years to four years, this is only one of the few, he notes.

Isaacson agrees and points out that the DHA is not coping with the backlog of applications and states that the processing times in South Africa take between six weeks and sixteen weeks.

“The draft regulations will make the process more cumbersome and difficult, which translates into skilled people and investors bypassing South Africa to look for more friendly environments,” he warns, but adds that he hopes the final version of the regulations will be amended to be constitutionally compliant.