I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
South Africa is one of the main economic powerhouses in Africa. It is a constitutional democracy in the form of a parliamentary republic. South Africa has 11 official languages and English is widely used in business and law. South Africa is generally regarded as one of the most beautiful and diverse countries in the world and the high numbers of tourists2 confirm this.
South Africa attracts, every year, a very high number of refugees and asylum seekers from all over Africa. Most applicants tend to utilise the asylum regime to regularise their stay in the country. This is evidenced by the fact that only about 5 per cent of the claims for asylum are successful since most of the applicants are economic migrants. This fact, along with South Africa's very high unemployment rate of more than 30 per cent, explain recent policy changes and future changes.
South Africa's current immigration policy makes a clear statement in favour of skilled migration. In the African context, South Africa's immigration system is quite sophisticated and offers a lot of options for immigrants; the challenges are on the implementation side. The very recent Constitution of South Africa is widely regarded as one of the most progressive in the world. This has direct impact on the immigration framework. Unique in Africa, homosexuals enjoy the same rights and protection as heterosexuals. In addition, even a life partnership is protected and therefore unmarried partners can accompany their partner to South Africa.
South Africa's immigration system is not based on a quota or points-based system. It does not distinguish between the right to work and the right to reside. Unlike countries such as Botswana, Mozambique or Tanzania, the work visa or other form of visa also gives the right to reside in South Africa. There is no additional registration process required.
Most visitors from developed countries can visit South Africa and are issued with a visitor visa upon arrival. In recent months visitors from Russia, Cuba, the United Arab Emirates, Quatar, Saudi Arabia and Tunisia have been granted a visa on arrival. In contrast, in the recent past most visitors from Africa, except for Southern African Development Community (SADC) Member States, were required to apply for a visa at the South African consulate or embassy abroad before travelling, but this has been changing fast over the past 12 months. There is a strong political will to ease travel restrictions within Africa in the near future, and in fact South Africa has removed visa restrictions for some African countries already, such as Ghana. The facilitation of business travel, and tourism in particular, is the main reason for these positive changes.
The immigration legislation offers a very wide range, at least compared to other African countries, of different temporary visas, as well as permanent residence permits. Four different kinds of long-term work visas, visas for volunteers, students, investors, life partners and spouses, international teachers, artists, tour guides, academics and professors, as well as for applicants who wish to retire in South Africa, are offered. Some of these categories even offer the way to permanent residence and later on to citizenship.
i Legislation and policy
The primary immigration-related statutes are the Immigration Act,3 the Refugee Act4 and the Constitution. The existing policy on international migration was set out in the 1999 White Paper on International Migration. It was implemented through the Immigration Act and partly through the Refugee Act. The Immigration Act was amended in 2011 to address glaring gaps and mistakes in the legislation, and was only promulgated in May 2014. The new Immigration Regulations came into effect on 26 May 2014. The amended Act and the Regulations have significantly changed the immigration legislation and the current legislation is quite different to the one prior to May 2014. The most recent amendment to the Immigration Regulations was in November 2018.
Since the end of 2015, the Department of Home Affairs (DHA) has started a comprehensive review of the existing international migration policy. Essentially, the country's formal international immigration policy had remained in place since 1999 despite significant changes in the country, region and in the world. The major problem of the existing policy is its inability to enable South Africa to adequately embrace global opportunities while safeguarding its sovereignty and ensuring public safety and national security. South Africa has not yet built consensus on how to manage international migration for development. There is a lack of a holistic and whole-of-government-and-society approach. The existing policy is based on an approach that is largely static and is limited to compliance rather than to managing international migration strategically to achieve national goals. In addition, there is no sense of South Africa being an African state situated in the SADC, which is one of the eight regional communities recognised by the African Union (AU).
The former and, once again, current Minister of Home Affairs, Malusi Gigaba, had therefore identified the development of a new international migration policy as one of the top priorities during his first term in office. As the first step towards this, the Green Paper on Migration was published in June 2016, and the next step in the legislative process was the White Paper on International Migration published in July 2017. It can be expected that a new immigration bill will be introduced to parliament during the course of 2020.
In addition, the National Development Plan (NDP)5 makes a clear statement in favour of immigration for the future. The NDP essentially argues that, if South Africa is to end poverty and create decent work it must use migration to grow the skills and knowledge base and remove barriers to regional development. This requires South Africa to invest strategically in the further development of an efficient and secure immigration system.
ii The immigration authorities
The DHA has historically been regarded as the sole department responsible for managing international migration. As well as immigration tasks, it is also in charge of all civic matters for South African citizens and permanent residence holders, and its staff is deployed at the borders. The adjudication of all immigration visas and permits is done by the DHA. For applications submitted in South Africa, but also in quite a few African countries and some other high-volume countries outside Africa, such as the United Kingdom and India, the submission process is handled by a private company, namely VFS Global. However, the adjudication is done solely by the DHA or its staff at the South African consulate or embassy abroad. Some embassies send their decisions for review to the headquarters in Pretoria before issuing the visa. This change was implemented in 2018. South Africa has the most embassies abroad of any African country and all first-time applications must be submitted at one of these embassies abroad.
iii Exemptions and favoured industries
South Africa does not offer any exemptions for specific sectors of the economy. There are no favoured industries either and the immigration legislation does not offer any privileges to certain sectors. However, for an investor who must apply for a business visa, there is the option to lower the capital contribution requirement of 5 million rand, if he or she invests in certain priority sectors such as business process outsourcing, boatbuilding, tourism, manufacturing, IT, automotive industries, agro-processing and others.
II INTERNATIONAL TREATY OBLIGATIONS
South Africa, as a Member State of the AU, supports the AU's Agenda 2063, a programme designed in 2013 by the AU to push the 'African countries . . . amongst the best performers in global quality of life measures'. One of the key parts of Agenda 2063 is the introduction of an African passport. The African passport was launched in July 2016 and is a bold statement, but, so far, it is only available to selected AU officials and national government personnel. Other key aspects of Agenda 2063 are the establishment of the Continental Free Trade Area and a continent-wide visa-free regime. Because of the existing pull factor of South Africa, it is not very far in the implementation of a continent-wide visa-free regime. Citizens of most African states must still apply for a visa to travel to South Africa, but we expect these hurdles to be lowered considerably in the coming two to three years. Negotiations with Kenya and Ghana are already quite advanced, and in the case of Kenya even publicly announced, but not yet implemented. Citizens of the SADC are already issued with a visa on arrival.
South Africa is also part of the BRICS states and is offering business people from one of the Member States a 10-year business visa. This is aimed at making business travel easier among the BRICS states.
III THE YEAR IN REVIEW
There have not been any major reforms in South Africa's immigration legislation in the past year. The general elections in May 2019 have delayed the publishing of new immigration legislation and we might expect publication of a new critical-skills list in June or July 2020 and in the second half of this year, which would then be followed by new draft legislation.
Significant practical changes were made using directives instead of legislation; for instance, for short-term work permits (see below). In addition, there were two Constitutional Court decisions with far-reaching consequences for refugees, and for foreign spouses of South African citizens or permanent residence holders.
South Africa introduced an e-visa pilot for Kenyan citizens and the first traveller with such an e-visa arrived in December 2019. It is planned to roll out this e-visa scheme to countries such as China and India, as well as Nigeria, in the first half of 2020.
i White Paper on Immigration – July 2017
On 28 July 2017 the South African government released its anticipated White Paper on Immigration, which provides a policy framework for the comprehensive review and overhaul of South Africa's immigration system and the introduction of significant changes over the next two years.
The DHA has identified its past approach as being largely static and limited to compliance, rather than strategically managing international migration. The resultant lack of proactive management of international migration does not advance the national security and development agenda of the country.
The elements of the new policy that simply require administrative action can be implemented immediately; other elements requiring legislative steps will take at least one year, if not two.
Delinking citizenship from permanent residence
The White Paper clearly suggests that there should be no link between the duration of permanent residence and the right to apply for citizenship by naturalisation: 'The granting of citizenship to foreign nationals should be considered as being exceptional and requiring an executive decision of the Minister.' An advisory panel will be established for citizenship. Skills, investment amount, and contribution to South Africa could be criteria to be considered, but the number of years spent in South Africa will carry little weight. There will be an induction and naturalisation ceremony.
Replacing permanent residence with long-term residence visas
The permanent residence permit will be entirely replaced by a long-term residence visa. The reason for this is to dispel the misconception that immigrants have a constitutional right to progress towards citizenship. The big difference between permanent residence and the newly suggested long-term residence visa is that, once granted, permanent residence can hardly be lost. The long-term residence visa will be reviewable. It is suggested that the long-term residence visa will be open to relatives and business visa holders, as well as to critical-skills visa holders.
Management of migrants with skills and capital – introduction of a points-based work permit system
The White Paper, surprisingly, makes a few clear statements in favour of skilled migration. First, it states that so far South Africa has not been successful in attracting enough highly skilled foreign nationals. Causes for this were identified as the international migration policy, which is not linked to the country's skills development and investment priorities, the lack of proactivity and flexibility in the permitting regime, and the absence of an inter-sectoral and intergovernmental approach. The main objective of the reform, therefore, is a simplified and predictable immigration regime that contributes to the economic growth of the country.
The paper proposes a points-based system combined with critical-skills lists or quotas, and recommends a scoring system, to be based on factors such as qualifications, work experience, age, investment amounts, type of business and ability and willingness to transfer skills to South Africans.
Another important point is that the recruitment of skilled foreign workers is to be linked to a mechanism that ensures skills are transferred to South African citizens, either through direct training programmes or through a levy on employers. The transfer of skills is a very important topic in Africa and must be seen in this context. How this will be implemented will make the difference and can only be assessed after implementation.
Lastly, there is good news for investors who wish to set up their own business in South Africa. The current approach requiring a minimum investment of 5 million rand and the recommendation of the DTI is seen as rather inflexible, and the paper clearly suggests adopting a more liberal and open approach to entrepreneurs rather than increasing the capital contribution even further. How this rather open statement will be implemented is not indicated.
Resident visas for students
To promote retention of international talent, international students are to be granted residence permits upon graduation in one of the subjects qualifying as critical skills, to encourage them to stay in the country and contribute to the economy.
Management of international migration within the African context
The new South African immigration landscape shall be especially aligned to the regional integration of the country in the SADC, and in the AU. We expect that the criteria for fellow Africans to obtain work visas will be relaxed or extra points will be given. In addition, there is a clear statement of the intention to establish visa-free travel within Africa in the coming years.
The White Paper is a clear statement in favour of skilled migration as well as regional integration. However, the real challenge will be to draft proper legislation that reflects the liberal, well-informed and open suggestions of this White Paper.
The first legislation, in the form of a bill, is not expected to be published before the second quarter of 2019 or even towards the end of the year.
IV EMPLOYER SPONSORSHIP
i Work permits
No foreign worker may perform any work-related activity in South Africa without a valid short-term work visa or without one of the three different categories of work visa, namely the intra-company transfer work (ICT) visa, the critical-skills visa (CSV) and the general work visa. All work visas have in common that the holder must have a sponsoring employer in South Africa. It is a criminal offence to knowingly employ a foreign national without the appropriate work visa. The employer must keep records for each employee and the Immigration Act stipulates specific obligations regarding record-keeping. As mentioned earlier, the work visa entails the right to residence. A separate registration process is not needed in South Africa.
Persons wishing to take up employment in South Africa can apply for a work visa in one of the following categories.
Short-term work visa or Section 11(2)
This short-term visitor visa with authorisation to work is issued for up to 90 days. It must be applied for outside South Africa at an Embassy or Consulate or at a VFS office. The processing times are short, taking approximately five working days. This short-term work visa can be extended once from within South Africa.
A significant change was communicated via Immigration Directive No. 1 of 2019 in April 2019. According to this change, applicants can only apply for one Section 11(2) visa and one extension during a calender year, thus a maximum of 180 days can be obtained during one calender year. Although it is unclear in the Directive, according to subsequent information provided by the DHA, even overseas submission of two Section 11(2) applications, for 90 days each, within one calender year is not allowed. This restricts projects significantly and staff rotation might be the only solution.
It does not require a direct employment relationship between the foreign national and the local receiving company. There is no defined list of allowed activities. The guiding principle should be the question: is the task the applicant does in South Africa in line with his or her usual line of work abroad? Therefore, applicants who conduct technical services, hold training or seminars or install machinery require this category of visa. Business meetings can be conducted on the 'normal' visitor visa, Section 11(1), which is issued upon arrival for visitors from most developed countries.
The ICT visa allows an employee to be transferred from an overseas branch to a South African branch for a period not exceeding four years. It is aimed at the typical assignment situation where the transferee remains employed by the foreign employer and does not get a local contract. The foreign national must be employed by the sending entity for more than six months before the intended transfer date. Compared with the other two categories of long-term work visa, the ICT requires the fewest documents and is a fairly straightforward process. However, the introduction of the requirement for a skills transfer plan often causes practical difficulties, in particular for smaller start-up companies. When applying for the ICT it must be stipulated which member of the local workforce (i.e., the particular South African citizen or permanent residence holder) the skills of the foreign national will be transferred to. Depending on the skills of the foreign national, this may be difficult to do.
An ICT cannot be renewed and is therefore only applicable for those requiring to work abroad for a maximum of four years. However, with a good reason, one can apply for a new ICT from overseas again and may be granted an additional four years. In this situation, it would be paramount to show that the transfer of skills during the first four years was successful.
A CSV can be applied for by applicants who are in possession of critical skills that would benefit the South African environment and are listed on the critical-skills list of June 2014. It is very likely that a new, shorter, list will be published in or around June 2019. Unlike all other work visas, the CSV does not require a local employer when applying. It is designed as a jobseeker's visa and applicants are issued with a CSV for 12 months. They then have up to 12 months to find local employment in the area of their critical skill. When they find an employer they are not allowed to start working within the first 12 months without first applying for a change of condition of their CSV. With a local employment contract, they will be issued with an additional four-year CSV.
Applications must be accompanied by an evaluation of the applicant's tertiary qualifications by the South African Qualifications Authority (SAQA), proof of application with the professional body or board of the industry within the applicant's area of expertise and a letter confirming their skills. The position must not be advertised and there is no local labour market requirement. Holders of a CSV who have more than five years of post-education work experience and are employed can apply for permanent residence even shortly after being issued with a CSV.
General work visa
If the above-mentioned categories are not applicable, a general work visa (GWV) will apply. A general work visa is a temporary residence visa that requires the foreign national's employer to have made every attempt to fill the vacant position with either a South African citizen or permanent resident. As there is a prerequisite of a recommendation letter issued by the Department of Labour (DoL), this GWV can take substantially longer to be issued (in excess of six months) and must be seen as a last option. General work visas are typically valid for up to five years and require a full new application to be renewed. A SAQA certificate is required and proof of registration with the professional body governing the industry within which the applicant will work, if required by law.
A corporate visa is applicable where an employer wishes to employ a large number of foreign workers for a limited period. The company is issued a corporate visa and their foreign employees will be granted corporate worker visas. The corporate visa is valid for up to three years. To qualify, a company must demonstrate that at least 60 per cent of its employees are South African citizens or permanent residence holders. Three different departments are involved in the application process for a corporate visa. The Department of Trade and Industry and the DoL must endorse the application for the corporate visa before the application is submitted to the DHA. The corporate visa, once issued, is accompanied by a set of corporate worker certificates. The latter are then used for the individual application of a foreign national to obtain their corporate worker visa. Applications for a corporate worker visa must be accompanied by a SAQA certificate and proof of professional registration where so required by law.
Other visas that allow the holder to work
Study visa holders who study at tertiary institutions are allowed to work for up to 20 hours a week. Foreign nationals under the age of 25 can apply for an exchange visa, which will allow them to work for one year in South Africa. A holder of a retired person's visa may apply for an authorisation to work. Spouses or life partners of South African citizens or permanent residence holders can obtain a spousal, work or business visa under the terms of Section 11(6) of the Immigration Act. They are not required to compete with the local work force and only have to show an offer of employment to qualify for a Section 11(6) visa with a work endorsement.
ii Labour market regulations
The Constitution of South Africa offers protection to all persons in South Africa and contains, as well as some fundamental rights, also several provisions relevant to employment and labour. Therefore, South African employment law is applicable to all employees, meaning foreign nationals and citizens. It even protects illegal foreign employees.
The South African employment legislation has three main sources: the Labour Relations Act6 regulates collective bargaining and provides protection against unfair dismissal; the Basic Conditions of Employment Act7 sets the minimum conditions and standards of employment; and the Employment Equity Act8 regulates affirmative action issues and obliges employers to undertake comprehensive reporting. The Occupational Health and Safety Act and the Unemployment Insurance Act are also employment-related legislation. Lastly, the Employment Service Act of 2014 contains applicable provisions when a South African employer employs a foreign national. In December 2018, the Department of Labour released Draft Regulations on the employment of foreign nationals, which include reporting duties. However, at the time of writing, no final regulations have been passed.
The employment relationship is therefore well codified and this is also indicative of the rather strong protections provided for employees. The reason can be found in the very strong political influence trade unions hold in South Africa. The DoL is tasked with the monitoring of compliance with labour legislation, and in particular with employment equity reporting.
The social security system is not well developed in South Africa compared with Europe. Health and pension insurance is taken out privately and are not compulsory. There are discussions of a state health insurance as well as making retirement savings compulsory, but nothing has been finalised as yet. However, South Africa does have an unemployment insurance scheme. As well as contributions to the unemployment insurance fund, each employer is liable to pay a skills development levy and pay contributions to the Workmen's Compensation Fund. Compared with those in other developed markets, the required contributions are rather low. Unemployment Insurance Fund contributions must be paid by the employer as well as the employee and are limited to 1 per cent of total salary paid to the employee. The employer deducts the 1 per cent from the employee and pays both their contributions to the fund.
The DoL plays a vital part in the granting of a general work visa. It must issue a certification confirming that, despite a diligent search, the prospective employer has been unable to find a suitable citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant; the applicant has qualifications or proven skills and experience in the line of the job offer; the salary and benefits are not inferior to the average salary of locals and the contract of employment is in line with the labour standards in the Republic and is conditional upon the general work visa being issued. In practice, the DoL visits the prospective employer and checks compliance with labour legislation. Once the employee has been declared compliant, the national database is searched for local candidates. A high percentage of applications are not recommended.
iii Right and duties
Foreign employees enjoy the same protection as local employees under South African employment law. In terms of the immigration legislation, most obligations are placed on the employer. However, each foreign national has the duty not to infringe the conditions of his or her own visa. For foreign employees, this means not working without a work authorisation, not working for a different employer from the one named on the visa, and notifying the DHA once the employment has ended or when the foreign national has left South Africa.
The immigration legislation puts the following obligations on an employer. First, the employer has to undertake to cover the deportation costs of the applicant and his or her dependent family members, should it become necessary; to inform the Director General of the DHA should the applicant not comply with the provisions of the Immigration Act or conditions of the visa; and to inform the Director General if the foreign national is no longer employed by the original employer or is employed in a different capacity or role.
Second, each employer shall not employ an illegal foreign national or a foreign national whose status does not authorise him or her to be employed, or on conditions or in a capacity different from those contemplated in his or her status.
Furthermore, each employer shall keep copies of the passport and visa, employment contract, job description and IRP5 form for two years after the foreign employee has ended his or her employment.
It is evident from the above that the employer must notify the immigration authorities once the employment has ended. There is no time frame stipulated. In the case of international assignments, a departure notification must be submitted to the DHA once the foreign national has exited South Africa. A scan of the exit stamp of the foreign national, together with a declaration must be submitted to the authorities.
The current South African immigration legislation offers several ways to obtain permanent residence. For investors and high net worth individuals, this will be covered further below. For holders of work visas there are only two possible routes by which to obtain permanent residence.
For highly skilled applicants, the current version of the Immigration Act offers a fast track to obtain permanent residence. The applicant must qualify for critical skills according to the critical-skills list and must have at least five years' post-qualification work experience. The process and required proof are very similar to the ones mentioned under the critical-skills visa. The current political aim is to attract highly skilled foreign nationals and to make it easier for them to stay in South Africa. Therefore, the DHA is processing permanent residence applications based on critical skills in less than six months. This is rather short compared with the usual processing times of one and a half years.
All other holders of work visas must work for at least five years in South Africa and be holders of any valid work visas during this time and have an offer of permanent employment to qualify for permanent residence based on Section 26(a). It is very important to note that, according to the interpretation consistently adhered to by the DHA, the time spent on an ICT visa does not count as part of the five-year period. According to the DHA, holders of an ICT are only in South Africa on a temporary assignment and also, in most cases, are not localised. This interpretation is a clear violation of the wording of the Immigration Act, which speaks of 'a holder of a work visa in terms of this Act'. The time spent on an ICT should count as part of the five years. However, applicants who wish to argue this when applying for permanent residence face a strong possibility of having their application rejected.
v INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
Foreigners who wish to start their own business in South Africa are welcome to do so. The Immigration Act is only applicable to those foreign nationals who wish to work themselves in the business or own the business and wish to sojourn in South Africa. The Immigration Act is not applicable to foreign nationals who become shareholders in a local company and wish to remain abroad for most of the year. For such investors, South Africa does not have restrictions on foreign shareholding, except on very rare occasions.
A foreign national who intends to establish, or who has established or invested in an established business in South Africa may be issued with a business visa in terms of Section 15. Four main requirements must be met. First, the business must not be deemed undesirable by the Minister.9 Second, the foreign national must invest a prescribed financial or capital contribution in the business and the funds must originate from abroad. The current contribution is 5 million rand. Further, the foreign national must undertake to employ at least 60 per cent of citizens or permanent residence holders in the business within 12 months of issuance of the visa. Lastly, the Department of Trade and Industry (DTI) must recommend the business. This recommendation is required for all business visa applications. To obtain such a recommendation, a comprehensive business plan must be submitted to the DTI, confirmation of availability of funds and some other undertakings. It is not required to have already made the investment into South Africa to apply for the DTI recommendation. The funds can still be overseas. Thus the recommendation can be applied for before making the investment.
Businesses in certain industries identified as of national interest may apply for a reduction or even a waiver of the above-mentioned capital investment threshold.
Foreign nationals who have a certain prescribed net worth10 may apply for permanent residence based on this net worth. To calculate the net worth, all debt must be deducted and there is no minimum age requirement according to the law. Further, there is no requirement that the prescribed net worth threshold or a certain part of it must be invested in South Africa. Successful applicants must pay to the DHA a fee of 1 per cent of the prescribed net worth once they are issued with their permanent residence. The permanent residence is issued without conditions and permanent residence holders have the same rights as South African citizens, except for the right to vote and access to certain professions.
Skilled migrants have the option to obtain a critical-skills work visa and also permanent residence based on their critical skills. The requirements have been covered above. Apart from the critical-skills category there is no additional option for skilled migrants.
VI OUTLOOK AND CONCLUSIONS
As mentioned before, a significant reduction of visa requirements for African travel for Africans has been implemented and a further improvement can be expected. The political will is there and, with the recent signing of the African Continental Free Trade Area agreement, visa requirements will be high on Member States' agenda. Furthermore South Africa has concluded its trial period for an e-visa scheme in Kenya and will roll this out in the near future for countries such as China and India, as well as Nigeria. The aim is to bring the continent and its people together, enabling business travel and therefore increasing investment.
In addition, in late 2019, additional resources were provided to the South African missions in India and China, with the aim of reducing the very long processing times.
A significant change is the intention of the DHA to appoint a private service provider for all missions abroad in order to centralise processing in Pretoria and reduce the number of employees working in the missions. This will reduce costs, strengthen capacity and, hopefully, reduce different interpretations of legislation in the missions and lead to a more reliable adjudication, although the author remains sceptical about this step. During the past 20 years, centralisation has neither improved processing time (the opposite was true) nor improved the quality of adjudication.
The author has been involved in policy suggestions submitted to the Minister, with the spouse of a critical-skills work visa holder's right to work being one suggestion. South Africa could also introduce residence by investment but link the permit to investing into South Africa. The introduction of a tech visa would also be highly welcome.
It can be expected that South Africa will continue to make a clear statement in favour of skilled immigration. It seems that the minister takes the international competition for talent seriously. The focus on fast processing times for critical-skills visas and giving consideration to granting foreign graduates of South African universities either the right to work in South Africa for a period after graduating or even the right to permanent residence are liberal in an African context. We do not expect any major changes for international transferees. The current four-year duration of intra-company transfer visas is in line with international standards.
Further, there will be a clear focus on making business travel and maybe even movement of people among African states easier in the near future. We might even see different requirements for immigrants from neighbouring states and immigrants from outside Africa.
On the other hand, we might see a stricter enforcement of the already required transfer of skills. Protection of the local labour market, the involvement of the DoL in the general work visa process and the transfer of skills are top political priorities and it is most unlikely that these will change. The pressure on unskilled foreign nationals to leave South Africa will increase.
According to the DHA, one of the major reasons for the new immigration policy in the making is the need to link immigration with the economy necessity of addressing the skills shortages in certain areas. This will require intergovernmental cooperation, regular updating of the desired skills and reliable data upon which to base decision-making. Judging from past experience, South Africa is rather good at drafting well-balanced policies but struggles to implement them effectively, particularly if cooperation between different government departments is required; the track record is rather disappointing. It would be a big step in the right direction if the DHA would not only focus on drafting good policy, but also spend considerable resources on implementing the new legislation efficiently.
A new immigration bill is expected to be introduced in late 2020.
1 Andreas Krensel is managing director of IBN Immigration Solutions.
2 15.6 million arrivals as at the end of 2015.
3 Immigration Act No. 13 of 2002, as amended.
4 Refugee Act No. 130 of 1998.
5 The government bases important policy decisions for different sectors on the NDP.
6 Act 66 of 1995, as amended.
7 Act 75 of 1997, as amended.
8 Act 55 of 1998, as amended.
9 In March 2017 the following businesses were deemed undesirable: the import of second-hand cars for the purpose of exporting to neighbouring countries; the exotic entertainment industry; and the security industry.
10 As of March 2017, the prescribed net worth is 12 million rand.