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What is the change? South African authorities have said they will put recently announced changes on the validity period of visas on hold pending further discussions.
What does the change mean? Visas will remain valid beyond the expiration date of a visa holder’s passport and, pending further notification, authorities will continue to recognize the transfer of an existing visa from an old passport to a new passport. A Department of Home Affairs instruction that had aimed to change these rules has been scrapped.
Background: South African authorities said earlier this month that visas would automatically expire 30 days before the expiration date on a visa holder’s passport, regardless of for how long the visa was initially issued. BAL has learned, however, that the government has put this change on hold and will discuss the matter further. This means that for visas issued with a validity period that extends beyond the validity period of a passport, authorities will allow visa holders to travel into South Africa with their expired passport, their visa and their new passport. Those already in South Africa can transfer their visa from an old passport to a new passport.
BAL Analysis: South Africa’s reversal on a policy that would have created extensive administrative burdens on employers and visa holders is welcome news. That said, officials appear to be reviewing the policy, and additional change is still possible. BAL will continue to follow events in South Africa and will update clients on any significant changes on this matter.
This alert has been provided by the BAL Global Practice group and our network provider located in South Africa. For additional information, please contact your BAL attorney.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – MEDIUM
What is the change? In a recent speech, Home Affairs Minister Malusi Gigaba addressed the issue of a potential overreliance on foreign workers in certain industry sectors and stated that the government will prioritize the management of international migration to better benefit local workers.
What does the change mean? Although the speech specifically referred to a meeting with the hospitality industry last month, Gigaba said that the South African government “has a duty to ensure proper monitoring mechanisms are in place for South Africans to benefit the most from economic and employment growth, across all sectors,” and emphasized rules requiring certain companies to maintain a 60-percent ratio of local-to-foreign workforce. He also used the opportunity of the speech to announce the Department of Home Affairs’ intention to increase compliance activity to ensure that South African citizens and permanent residents are prioritized in local recruitment processes.
Background: In his speech Jan. 31, Gigaba said that a “burning issue” and “grave concern” is that many businesses, particularly in the construction and hospitality sectors, do not hire South African citizens and prefer to hire foreign workers.
“It is a matter we cannot put aside, thus its prioritization going forward. And so we have resolved this year to pay serious attention to this matter…,” Gigaba said.
Although the Minister cited the 60-percent rule, it is limited to certain immigration circumstances, i.e., to companies that have been issued a corporate visa or companies established by a foreign national who has been issued a business visa on the basis of starting or investing in a South African company. Furthermore, the requirement is that the workforce of such companies must be at least 60 percent South African citizens or permanent residents, and not South African citizens alone.
BAL Analysis: The speech signals that the Department of Home Affairs is seeking greater localization efforts by companies and is prioritizing policies to favor employment of South African citizens.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
IMPACT – HIGH
What is the change? South Africa has announced significant changes to the validity period of visas. Visas will no longer be valid beyond the expiration date of the holder’s passport, and authorities will no longer recognize or transfer an existing visa from an old passport to a new passport.
What does the change mean? All foreign nationals currently holding South African visas should check the expiration date on their passport, which is the date that now controls expiration of their visa (regardless of the visa’s stated validity period). Individuals applying for South African visas should also make sure that their passport is valid for at least 30 days beyond the requested visa period.
Background: Previously, South African immigration authorities issued visas with a maximum validity period based on the period requested in the application. If a visa holder’s passport expired during the visa period, authorities would allow the visa holder to travel into South Africa with the expired passport holding the visa and the new passport; those already in South Africa could transfer their visa from an old passport to a new passport.
Under the new Department of Home Affairs policy, the maximum validity of a visa is the passport’s validity period minus 30 days. The policy affects individuals currently holding South African visas as well as those applying for or renewing visas, and affects visas issued abroad or in-country.
According to the DHA statement, “A visa issued with an expiry date beyond that of a passport is considered to have been issued in error and when discovered will be withdrawn.” The statement further clarifies that foreign nationals will not be exempt from immigration enforcement because a visa was issued in error. Therefore, in the event that a visa holder’s passport expires while in South Africa during the visa term (even if the visa validity was issued in error), DHA is likely to deem the foreign national an overstay who is subject to being on the “undesirables” list and barred from re-entry for at least 12 months.
BAL Analysis: BAL is working with clients to identify and assess affected employees and their dependents to prevent foreign nationals currently in South Africa from overstaying their visas and to ensure that individuals applying for visas hold passports that do not expire within the maximum visa validity period.
South Africa’s Department of Home Affairs has said that messages circulating on social media claiming that the government has ordered the immediate deportation of undocumented immigrants are false.
“Citizens and all other persons in the country are strongly advised to ignore this false alarm that is seemingly seeking to fuel tensions in the country, at a time when priority is given to economic development, creating jobs and fighting poverty and inequality,” the department said. “It is in the best interest of the country for government and citizens to do all in their power together to work for stability and peace, while combating illegal migration and other crimes through lawful means.”
Key Points:
BAL Analysis: Companies and residents of South Africa should ignore social media messages claiming that mass deportations are imminent. BAL will continue to follow developments in South Africa, including any statements the minister of Home Affairs might make about how the agency is addressing issues concerning undocumented immigrants or asylum seekers. Companies with questions about the status of employees, or steps they need to take to make sure their employees retain proper status, should contact BAL.
What is the change? In January, South Africa will eliminate visa-waiver status for New Zealand nationals in reciprocation of New Zealand imposing visa requirements on South Africans in November.
What does the change mean? New Zealanders planning to travel to South Africa will need to obtain a visa at a South African embassy or consulate before travel. Additionally, other nationals currently enjoying visa-free travel to South Africa should be aware that the South African government plans to review all other countries that do not provide reciprocal benefits to South Africans.
Background: Last month, New Zealand withdrew visa-waiver status from South African nationals because of an increase in the number of South Africans who had been refused entry. On Tuesday, South Africa’s Department of Home Affairs announced that it will reciprocate and repeal the visa exemption for New Zealand nationals as of Jan. 16. In making the announcement, DHA Minister Malusi Gigaba also confirmed that South Africa will review all other countries that impose visa requirements on South Africans with the intention of ensuring additional reciprocity.
BAL Analysis: New Zealanders planning to visit South Africa on or after Jan. 16 must hold a valid visa or will be denied entry. BAL is following South Africa’s review of other countries that currently enjoy visa-free travel to South Africa and will report any additional changes in the country’s visa-waiver policies.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? The Department of Home Affairs has asked the South African Treasury for an exemption to a government staffing cap so that it can hire thousands more immigration inspectors. The department says the immigration inspectors are badly needed and has resorted to temporary staffing increases in order to help people move in and out of South Africa during the holidays.
What does the change mean? An overall increase in staffing would likely lead to fewer delays at points of entry at international airports and other immigration checkpoints but, at the same time, would likely increase in-country compliance activity undertaken by the DHA. The additional holiday staffing should help ease immigration processes through the Christmas and New Year’s holidays.
Background: The back-and-forth on the budget comes as DHA is preparing to launch the Border Management Authority. DHA says the increased staffing is needed to not only lay the groundwork for the new authority, but also to meet basic immigration services at points of entry. According to recent reports, even during peak periods, only 60 percent of immigration counters are operational in South African airports. DHA Minister Malusi Gigaba said temporary staffing increases – including adding 92 inspectors working split shifts at O.R. Tambo International Airport in Johannesburg – would help South Africa get through the peak holiday travel season and that during peak travel times in December immigration counters would be fully staffed.
BAL Analysis: The temporary increase in staffing and the possibility of longer-term staffing increases are generally positive signs for business and other travelers, as staffing increases would ease immigration procedures at South African airports and other points of entry. However, a sharp increase in the number of permanent immigration inspectors will likely increase in-country compliance activity undertaken by the DHA. The Treasury has yet to work out whether funding is available to meet the DHA’s request.
What is the change? The South African government has said it will impose a minimum wage of R3,500 (about US$257) a month. The wage would apply to both foreign and domestic workers and is expected to be implemented at some point in the next two years.
What does the change mean? Companies should take note of the announced wage increase. Once an implementation date is announced, companies should plan accordingly to ensure that no workers are paid less than the law requires.
Background: With approximately 47 percent of working people in South Africa currently earning less than R3,500 per month, the government’s minimum wage announcement was hailed by some, but also drew criticism both from those who believe that it is too low and those who believe the wage will be hard on business and lead to higher unemployment. In defending the introduction of a minimum wage in Parliamentary questioning, Deputy President Cyril Ramaphosa made it clear that the wage would apply to all workers, regardless of their nationality.
BAL Analysis: Concerns that foreign workers were being exploited played a role in the recent minimum wage debate, and the government has now made it clear that the wage, once introduced, will apply to all workers, no matter their nationality. Companies employing foreign workers should not only plan their budgets accordingly, but should also be aware that the government’s compliance and monitoring activity following the introduction of the minimum wage will likely focus on foreign national employees. BAL will continue to follow the rollout of the minimum wage, including any announcements of an implementation date.
What is the change? South Africa’s Department of Home Affairs and VFS Global have opened visa application centers in Botswana and Zimbabwe.
What does the change mean? Foreign nationals must now apply in person for South African visas and permits at the new applications centers, located in Gaborone in Botswana and Harare and Bulawayo in Zimbabwe.
Background: VFS Global has previously worked with the South African government to establish visa application centers in Angola, China, the Democratic Republic of Congo, Ghana, Kenya, Nigeria, Uganda and the United Kingdom. VFS Global also operates a number of visa application centers throughout South Africa. The Department of Home Affairs has said it plans to work with VFS global on a visa application center in the United Arab Emirates, though that center is not open yet.
BAL Analysis: South African visa and permit applicants should take note of the new application centers, which are now accepting applications on behalf of South African consular missions in Botswana and Zimbabwe. The centers should ease visa and permit processing as they have in South Africa and a number of foreign countries.
What is the change? Hip-hop artist Mos Def has resolved his case with the South African government, admitting that his use of a “world passport” violated the country’s immigration laws. The American musician and activist will be put on the list of “undesirable persons” and will be barred from entering South Africa unless he first obtains a waiver from the Director-General of the South African Department of Home Affairs.
What does the change mean? The case signals that South Africa is serious about applying the Immigration Act, entry bans and criminal prosecution to all travelers, even high-profile and frequent visitors to South Africa.
Background: Mos Def was detained in Cape Town earlier this year when he attempted to leave the country using a “world passport,” which South Africa does not recognize. South African prosecutors also sought to bring criminal charges against the musician. Under the settlement announced by the South African government, Mos Def apologized for his conduct and agreed to leave the country by the end of last week on a U.S. passport. The South African government, in turn, agreed to drop the criminal charges pending against Mos Def but will still bar him from re-entering the country until he has secured a waiver of inadmissibility.
B·A·L Analysis: Travelers to South Africa are reminded that provisions of the Immigration Act, including re-entry bars for individuals declared “undesirable persons,” are in effect and will be strictly enforced.
What is the change? Foreign university students have been granted a “blanket administrative extension” that will allow students whose visas are set to expire on or before Dec. 31 to remain in South Africa until March 31, 2017.
What does the change mean? The change will allow affected students to remain in South Africa three months into the new year to complete their studies, as many of South Africa’s universities grapple with student protests that have disrupted class schedules. Affected students do not need to take any action. However, absent any additional extension, they must leave South Africa on or before March 31.
Background: South Africa’s universities have been struck by demonstrations by students protesting the cost of higher education. The demonstrations have disrupted class schedules and, in some cases, final exams have been postponed until after the new year. This would have meant that some foreign students whose visas were set to expire on or before Dec. 31 would have had trouble completing their studies. The Department of Home Affairs responded this week by issuing Immigration Directive No. 25 of 2016 to provide the extension.
BAL Analysis: The extension is designed to make it easier for foreign students to complete their studies without falling out of status. South Africa has also made it clear that those who stay to complete their studies will not be declared “undesirable” upon departure, which would affect their future ability to come to South Africa, provided they leave on or before March 31.
This alert has been provided by the BAL Global Practice group and J Fetting Inc. in South Africa. For additional information, please contact your BAL attorney.