Search
Contact
Login
Share this article
IMPACT – MEDIUM
What is the change? A recent decision of the Department of Home Affairs to prohibit asylum seekers from applying for temporary or permanent residence status while in South Africa faces a legal challenge. The DHA is expected to defend the court action, which is scheduled for an April 21 hearing.
What does the change mean? Pending the outcome, employers should be aware that foreign nationals applying for asylum in South Africa continue to be work authorized but must be immediately terminated if their applications are refused and they no longer have the option to apply for work permits while in South Africa.
Background: The number of employers impacted by the recent change in DHA policy is potentially significant, given that an estimated 10 percent of the South African workforce are foreign nationals with outstanding asylum applications. Nearly 870,000 new asylum applications were submitted to the DHA between 2008 and 2013.
Under a 2008 court order, the DHA allowed asylum seekers to apply for temporary or permanent residence permits without risk to an outstanding asylum application. Under a recent policy change, however, the DHA no longer allows asylum seekers to change immigration status in-country, requiring them to return home to apply for a temporary or permanent residence permit. The change effectively forces them to give up their asylum claim before submitting an application for temporary or permanent residence. The policy became effective Feb. 3 and applies to all outstanding applications regardless of the submission date.
BAL Analysis: As applications for temporary residence permits include applications for South African work permits, employers need to be aware that, although foreign nationals applying for asylum in South Africa continue to be work authorized, the employment of the foreign national must be immediately terminated if the DHA refuses that application. Employers should also be aware that, pending the outcome of the current legal challenge to the DHA policy, the foreign national can no longer apply for a work permit while in South Africa.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
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? South Africa has begun issuing multiple-entry visitor visas that are valid for up to three years to business travelers, tourists and academics.
What does the change mean? The new visas are not available to first-time applicants or nationals of visa exempt countries. However, the change will greatly benefit frequent travelers who require visitor visas to enter South Africa because the allowable extended validity period should significantly reduce the need for repeat visa applications.
Background: The change is part of South Africa’s continuing efforts to address criticism that strict visa rules have caused a decline in travel to the country.
The new visit visas will be valid for up to three years, but may be issued with shorter validity periods at the discretion of the South African mission issuing the visa. Visa holders will be permitted to stay in South Africa for up to 90 days on each visit for business, tourism or academic purposes. Work activities are not permitted on visitor visas, and work authorization is still required in this regard.
BAL Analysis: The change does not affect nationals of visa exempt countries. The longer-validity visas will make travel more convenient for foreign nationals who require a visa and who travel frequently to South Africa.
What is the change? A senior official of the Department of Home Affairs has been charged with corruption for allegedly accepting a police informant’s bribe to facilitate the processing of permits.
What does the change mean? Companies are reminded that corruption does exist and that cases processed unusually quickly and without reasonable explanation should be treated as suspicious and investigated.
Background: The arrest is the latest in the Department of Home Affairs’ ongoing anti-corruption operation, Bvisa Masina (“throw out the rot”). Launched in April 2015, this initiative is generally considered to have been a success. According to a statement by the Home Affairs Minister, there have been more than 30 arrests to date and multiple officials have been given prison sentences for various crimes, such as selling fraudulent documents and manipulating permit procedures.
In the most recent case, a special unit of the South African police force, working in cooperation with an anti-corruption unit of the DHA, arrested the senior DHA official on Dec. 17. She was subsequently charged with accepting a police informant’s bribe of 40,000 rand (about US$2,600) in connection with the processing of permits and has been released on bail pending a criminal court appearance.
BAL Analysis: The arrests and other successes of the Bvisa Masina operation are evidence of the DHA’s commitment to tackle both perceived and actual corruption in South African immigration processes and that the necessary resources have already been devoted to the cause. Employers should note the DHA’s policy of zero tolerance and its stated intention to deal decisively with fraud and corruption. In addition, employers should be mindful that the seniority of the DHA official most recently arrested may impact all applications, in at least the short-term, as immigration officials may now be inclined to take longer to adjudicate cases and to interpret rules and procedures more conservatively in order to avoid any possible appearance of irregularity.
What is the change? VFS Global processing centers and other offices and agencies providing immigration services will close or limit operations for roughly two weeks during the Christmas and New Year holiday season.
What does the change mean? Services will be limited. Visa and work permit applications that are pending may be delayed by two weeks or more. Applicants should submit applications as soon as possible.
Background: VFS Global processing centers in South Africa will be closed for submissions and appointments from Dec. 22 until Jan. 3. During some of that time, offices will remain open for collections between the hours of 8 a.m. and 3 p.m.
The South African Qualifications Authority will be closed from Dec. 23 until Jan. 4. During SAQA’s closure, qualifications evaluations for Critical Skills Work Visa and General Work Visa applications will be placed on hold. Most professional boards and councils will also be closed during the holidays, some as early as Dec. 18 until Jan. 4 or Jan. 11. These closures also affect qualifications evaluations for Critical Skills Work Visas. South African embassies and consulates will be closed to the public for varying periods between Dec. 24 and Jan. 4. Foreign embassies and consulates in South Africa will also be closed for varying periods between Dec. and Jan. 11.
BAL Analysis: Holiday closures will cause processing delays, so those in need of immigration services are advised to submit applications as early as possible. Those with questions about specific closures should contact the relevant office or agency or their local BAL professional.
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.
What is the change? South Africa’s diplomatic missions in New Delhi and Mumbai are facing increased workload and staffing shortages that have caused serious processing delays.
What does the change mean? Foreign nationals applying for work permits or visas at South African missions in New Delhi or Mumbai should submit their applications as soon as possible and anticipate delays.
Background: The delays are due to a shortage in staffing and an increase in demand for visas, permits and other services. South African officials in India have reported that they are experiencing roughly double their normal workload. There is no indication at this point of when delays might be alleviated, but the backlogs are serious. More than 800 applications are pending in Mumbai, and officials this month were still busy with visa applications from June.
BAL Analysis: Travelers in need of immigration-related services at South African missions in India should submit applications as soon as possible to avoid unnecessary delays in their travel.
What is the change? After a meeting of the Inter-Ministerial Committee on strict visa rules that have caused a decline in travel to the country, the Department of Home Affairs announced policies that will make it easier for visitors to apply for visas. Rules that children carry birth certificates will continue to be enforced, but with some easing of the rules for minors from visa-exempt countries.
What does the change mean? The department promises in the next three months to launch a pilot program to take biometrics at ports of entry for foreign visitors whose home country does not have a South African consular mission and to consider multiple-entry visas that will be valid for up to three years for frequent business travelers. The department will consider longer-range policies in the next year, including expansion of visa centers and consideration of longer-validity visas or visa waivers for China, India and Russia.
Background: Last year, South Africa introduced strict rules on visas and traveling children. Visa applicants were required to appear in person at a South African consulate to give biometrics, making it especially difficult for foreign nationals from countries that do not have a South African mission to obtain visas. The rules on traveling minors required them to carry unabridged birth certificates or permission from their parents or guardians, or a divorce or death decree of parents where necessary.
The onerous rules have cause tourism to nosedive, leading to the meeting of the Inter-Ministerial Committee. Following that meeting, the Department of Home Affairs announced several changes:
Regarding in-person visa application rules, the DHA plans in the next three months to:
In the next year, DHS plans to:
Rules mandating that traveling minors carry unabridged birth certificates will remain in effect for outbound and inbound children, but will be eased for visa-waived children in place of a strong advisory for certain documentation.
BAL Analysis: While the proposed measures may ease short-term business travel as well as travel for children from visa-waived countries, it is important to note that the DHA has not implemented the new measures, and the dates and details of implementation remain vague. Therefore, current rules remain in place.
What is the change? Technical problems resulting from changes to appointment booking procedures at Visa Facilitation Services (VFS) centers have delayed visa applications.
What does the change mean? Those applying for visas at VFS centers in South Africa should prepare for delays and may have to change travel plans.
Background: VFS centers in South Africa are in the midst of a changeover to a new appointment booking system that requires payments in advance. The change has led to technical difficulties over the past two weeks. The South African government has not issued any official information about the difficulties, but the problems have made it impossible to submit applications in some instances.
BAL Analysis: BAL will continue monitoring the technical problems and update clients on any significant developments.
What is the change? South Africa’s Department of Home Affairs has issued new guidelines on its requirement that minors travel with an unabridged birth certificate and other relevant documents.
What does the change mean? The new guidelines provide exemptions to the rule for minors with valid South African visas; minors who entered South Africa before June 1; minors in direct transit at an international airport; and minors traveling with parents from countries such as India, where parents’ particulars are endorsed in the child’s passport. However, because of ongoing confusion over enforcement of the new rule, adults traveling with minors should be prepared to produce an unabridged birth certificate if possible even if an exemption applies.
Background: The requirement that minors travel with unabridged birth certificates and other relevant documents is part of last year’s immigration overhaul and was initially postponed to give parents and government agencies sufficient time to prepare.
The requirement is intended to crack down on child trafficking and other illicit activities, but has been criticized by groups concerned about its impact on tourism and business in South Africa. It took effect June 1, however, days after DHA released guidelines outlining the exemptions described above. There is no set time limit on the exemption for minors who traveled to South Africa before June 1. However, minors who stay long enough in South Africa are required to obtain a visa, which requires an unabridged birth certificate. The length of time a minor can remain in South Africa without a visa depends on nationality.
For the time being, the South African government is relying largely on airlines to enforce the new requirement at the point of departure for South Africa. It is not clear that all parties responsible for enforcing the new requirement understand the rules and exemptions.
BAL Analysis: Due to possible confusion, BAL recommends that those traveling with minors be prepared to produce an unabridged birth certificate and other relevant documents even if an exemption applies. Otherwise, travelers who encounter airline officials or migration agents unfamiliar with the exemptions may face significant travel delays. BAL will continue to monitor the implementation of the new requirement, including any possible changes to the current rules or enforcement trends.
What is the change? South Africa is allowing foreign nationals in all categories of Work Visas and Business Visas to study part-time without having to apply for separate permission to do so.
What does the change mean? The change makes it easier for foreign employees and assignees to pursue part-time college education in South Africa, as long as the university or college is registered under the appropriate government department.
Background: The Department of Home Affairs has announced that effective retrospectively to May 1, it will automatically allow holders of Work Visas and Business Visas to pursue part-time study. The school must be established as a higher education institution under the Higher Education Act or as a college under the Department of Higher Education and Training. Study at other schools is not allowed.
BAL Analysis: Foreign nationals working in South Africa who wish to pursue studies should note that full-time study is not allowed and coursework is only allowed during the period when the Work Visa or Business Visa is valid.
What is the change? South Africa has opened registration for companies who wish to use a new one-stop premium visa service center for faster visa and work permit renewals.
What does the change mean? Companies must apply in writing and undergo a selection process by the Department of Home Affairs based on a points system.
Background: The one-stop center will serve select corporate applicants who have been approved for Corporate Account status. Applications for this status must be made in writing within 10 working days of the Gazette notice of May 12. An advisory committee will select companies by awarding points based on the following criteria:
Companies that wish to apply for Corporate Account status must address all of the selection criteria in their application, which should not exceed two pages and must be signed by the corporate applicant or human resources director. Applications must be submitted via email to the corporate accounts unit indicated in the announcement. The Department of Home Affairs will make the final selection and will advise applicants on the outcome.
BAL Analysis: The one-stop-shop premium service should facilitate visa applications for select companies with high volume of work visa applications.