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IMPACT – HIGH
What is the change? South Africa says it plans to implement strict and onerous rules June 1 to require all children traveling to and from South Africa, whether alone or with an adult or parent, to carry unabridged birth certificates and other relevant documentation.
What does the change mean? The Department of Home Affairs is recommending that parents apply for unabridged birth certificates and other required documents for any child planning to travel to or from South Africa.
Background: The rules are intended to prevent child trafficking and other illicit activities targeting children and were part of last year’s immigration overhaul. The implementation of these specific requirements was postponed to give parents and government agencies sufficient time to prepare.
All parents traveling with children must carry unabridged birth certificates reflecting the particulars of themselves and the child. If only one parent is traveling with the child, he or she must also carry written consent from the other parent in the form of an affidavit (signed less than three months before travel) that authorizes travel to and from South Africa with the child. Where applicable, a court order for a legally separated parent or a death certificate of a deceased spouse must be provided. Adults traveling with nonbiological children have these same requirements and must also show copies of the parents’ passports and their contact information. Children traveling alone must carry letters of consent and contact details from both parents as well as letters and identity documents of the persons receiving them in South Africa.
Birth certificates and other documents not originally in English should be translated into English by a legally recognized translator. Affidavits must be no older than three months at the time they are presented to authorities during travel.
BAL Analysis: Despite concerns about the feasibility of such wide-ranging rules, the Department of Home Affairs has stated its intent to implement them June 1. Contact a BAL attorney if you have questions about what documentation is required for children and adults traveling with children in South Africa.
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 © 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.
IMPACT – MEDIUM
What is the change? The Department of Home Affairs is launching a Premium Visa Application Service in partnership with the Gauteng Growth and Development Agency and Gauteng Investment Centre for qualifying corporate companies and businesses.
What does the change mean? Companies and businesses that are selected, based on a qualifying points system, will be given “Corporate Account” status, which will then allow them to benefit from streamlined visa service.
Background: The one-stop premium service center will only serve select corporate applicants who have been approved for Corporate Account status. Applications for this status must be made in writing within 10 days of the Gazette notice. An advisory committee will select companies by awarding points based on the following criteria:
BAL Analysis: Companies that want 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. The Department of Home Affairs will make the final selection and will advise applicants of the outcome.
What is the change? South Africa has amended an earlier order on foreign nationals seeking to extend intra-company transfers. Foreign nationals holding ICT Work Permits issued prior to May 26 will be allowed to apply in-country for a new ICT Work Visa in certain circumstances.
What does the change mean? ICT permit holders do not have to leave South Africa to obtain a new ICT Work Visa to continue their assignment as long as the cumulative duration does not exceed four years from the date the initial ICT Work Permit was issued. For assignments totaling more than four cumulative years, foreign nationals must leave South Africa and apply for a new ICT Work Visa from their home country.
Background: The Immigration Regulations passed on May 26 established that ICT Work Visas would be issued for four years and could not be renewed. However, the regulations were silent about foreign nationals holding ICT Work Permits issued before May 26 under the old regulations.
In October, the Department of Home Affairs issued a directive that allowed those foreign nationals to obtain a new ICT Work Visa valid for up to four years, but they were required to fly to their home country and apply at a consular post.
This month, the Department further clarified its policy in a new directive that allows holders of ICT Work Permits issued before May 26 to apply in-country for ICT Work Visas valid for up to two years to continue their international assignment. This in-country processing applies to foreign nationals whose assignment is extended such that the total period from the date of issuance of the initial ICT work permit to the end of the assignment does not exceed four years.
Foreign nationals who have completed four years of an international assignment and require an extension of their time can apply for a new ICT Work Visa for up to four years, but must return to their home country to submit the application from abroad .
BAL Analysis: The new directive is a very positive change that further eases the conditions for foreign nationals holding ICT Work Permits issued before May 26.
What is the change? South Africa has eased certain documentary criteria to support a Critical Skills Work Visa application.
What does the change mean? If applicants have proof they have applied for registration with a South African Qualifications Authority accredited professional body, board or council, they do not need to submit additional written confirmation of their appropriate skills and/or qualifications and appropriate post-qualification experience.
Background: Under South Africa’s recently amended immigration laws, applicants for the new Critical Skills Work Visa are legally required to submit, among other things, proof of registration application with a professional body recognized by the South African Qualifications Authority or a relevant government department, as well as written confirmation of the applicant’s skills and/or qualifications and appropriate post-qualification experience. In addition, they must provide proof of the foreign national’s qualifications evaluated by SAQA.
The directive clarifies that if an applicant has proof of an application for registration with a relevant SAQA accredited professional body, board or council, the applicant is not required to also obtain additional written confirmation of his or her appropriate skills and/or qualifications and appropriate post-qualification experience in relation to the critical skills category.
BAL Analysis: The directive is helpful in eliminating an onerous requirement that certain professional bodies, boards and councils do not wish to issue.
What is the change? In a change that solves a major impediment created by recent laws, South Africa has issued a new directive allowing holders of an intra-company transfer visa issued under old regulations to be issued a second ICT visa.
What does the change mean? The foreign national must meet all the requirements and return to their home country to apply through the appropriate South African mission. The new ICT visa will be valid for up to four years.
Background: South Africa overhauled its immigration laws earlier this year. One of the provisions prohibits ICTs from being extended or renewed.
BAL Analysis: The directive from the Department of Home Affairs is a welcome adjustment to the restriction on ICTs under the new law.
What is the change? Implementation of a cumbersome provision requiring that parents carry unabridged birth certificates for any children traveling with them has again been postponed, Minister of Home Affairs Malusi Gigaba announced at a media briefing today.
What does the change mean? The rule has been delayed until June 1, 2015.
Background: Under the new regulations adopted earlier this year, parents traveling with children under the age of 18 are required to produce an unabridged birth certificate for each child. In cases where only one parent is traveling with the children, consent in the form of an affidavit from the other registered parent is required. Alternatively, either a court order granting full parental responsibilities and rights or a death certificate of the other parent must be produced. Unaccompanied minors must travel with letters of consent and contact details from both parents as well as letters and identity documents of the persons receiving the children in South Africa. In May, the DHA delayed the implementation date to Oct. 1 to allow families to travel during peak holiday season.
BAL Analysis: Industry and other stakeholders, who have lobbied for the past two months for a more organized rollout, welcome the additional eight-month delay of the burdensome documentary rules until the middle of next year.
What is the change? A committee of South Africa’s Parliament has approved the recent immigration overhaul and urged the Department of Home Affairs (DHA) to implement its provisions.
What does the change mean? The parliamentary review indicates that the new immigration regulations – a massive undertaking that has thrown some areas of the law into confusion and drawn legal challenges to stop its implementation – will move forward.
Background: Following a detailed briefing by the DHA, the chair of Parliament’s Portfolio Committee on Home Affairs announced its support of the changes and said that “these regulations are long overdue and necessary in closing loopholes in the Immigration and Refugee Acts that were systematically used by syndicates to sell South African identity and citizenship.”
The committee noted that the DHA should be aware of “unintended impact” that the new laws may cause, but such challenges “cannot and should not be used as an excuse for non-implementation of the regulations.”
In particular, the committee pointed to the regulation requiring that adults carry unabridged birth certificates for any children traveling with them and noted that the DHA assured the committee that such a rule will be temporary until the DHA implements an electronic verification system.
“Through this envisioned electronic system, the certificate will only be required when applying and stored electronically and parents will then not be compelled to travel with it physically,” the committee chair said in a statement.
BAL Analysis: The announcement signals that the new immigration regulations are going forward in the near term, despite the practical challenges of implementing them. Stakeholders will continue to meet with the Minister of Home Affairs to work out sticking points.
What is the change? South Africa’s strict documentary rules for traveling with children take effect Oct. 1.
What does the change mean? Adults traveling with children must carry unabridged birth certificates for all accompanying children, regardless of whether they are their biological children. Additional documentary requirements apply to solo parent travelers.
Background: The rules, aimed at reducing child trafficking, are part of South Africa’s immigration overhaul. The rules were originally set to take effect in May, but the Department of Home Affairs delayed implementation to allow families to travel during peak vacation season.
Beginning Oct. 1, all parents traveling with minor children must be in possession of unabridged birth certificates reflecting the particulars of themselves and the child. If only one parent is traveling with the child, he or she must also be in possession of written consent from the other parent in the form of an affidavit that authorizes arrival or departure to and from South Africa with the child. Where applicable, a court order by a divorced parent or a death certificate of a deceased spouse must be provided. These requirements also apply to adults traveling with nonbiological children. Additionally, unaccompanied minors must travel with letters of consent and contact details from both parents as well as letters and identity documents of the persons receiving the children in South Africa.
BAL Analysis: Parents and other adults planning travel to or from South Africa should begin as early as possible to obtain the necessary documents to avoid delays in travel.
What is the change? Under the recent immigration changes, foreign nationals in several work permit categories are no longer able to extend their work permits beyond their expiration dates.
What does the change mean? Companies and assignees should not assume that work permits due to expire will be extended and should be prepared to explore alternatives if extensions are not possible.
Background: Companies and foreign assignees should pay special attention to the following work permit categories when planning extensions or renewals:
BAL Analysis: As a general rule, work permit renewals will be very challenging and in many instances not possible at all. Companies should begin planning for alternatives in the event there are no other work visa options available.
What is the change? Individuals from visa-waived countries should be aware of inconsistent implementations of Section 11(2) work authorization procedures by South African missions.
What does the change mean? Some South African missions are requiring visa-waived foreign nationals to apply in person for a Port of Entry Visa and Section 11(2) work authorization before traveling.
Background: On April 30, 2013, the Department of Home Affairs (DHA) issued a directive to South African missions abroad, delegating powers to issue Section 11(2) work authorizations. DHA therein stopped issuing 11(2) approval letters at its head office, but did not give the missions further guidance on how to handle 11(2) requests. A section 11(2) authorization is an endorsement to a Visitor’s Visa that allows the individual to work.
Since South African missions took over this role, the procedures have differed from location to location in handling of 11(2) requests from visa-exempt nationals. Previously, visa-exempt nationals could obtain a Section 11(2) approval letter and then, upon entry in South Africa, have their passports endorsed with the 11(2) authorization. Currently, some missions are issuing the approval letter without further procedures. However, other missions are refusing to issue the 11(2) approval letter and instead require that the foreign visa-waived national apply for a Port of Entry Visa and 11(2) work authorization. In addition, the in-person requirement is being implemented inconsistently. While legally foreign nationals must appear in person to apply for Section 11(2) authorization, some South African missions require an appointment while others are allowing application by mail or courier.
BAL Analysis: Businesses and assignees should plan for the extra time necessary to determine what the procedures are at individual South African missions and be prepared to apply for a Port of Entry visa and possibly travel to the nearest South African mission to appear in-person. Note that foreign nationals from countries that require a visa to South Africa have always had to obtain a visa and 11(2) approval and entry visa before traveling to South Africa and that those policies have not changed at South African missions.