The Department of Home Affairs has made certain changes to the Immigration Act of 2002 which have not been put into effect yet. The general sense around the industry is that the Regulations, which have due for some time, will be published within the next 1-3 months.
In summary, the changes, once implemented, would have the following implications, listed below. To ensure that you are up to date with these matters, register for our Immigration Seminars for HR Staff being held in Johannesburg and Cape Town, as below.
Right of representation and role of Professional Immigration Advisors:
One of the changes in the Act is that Section 46, which defines which professions may legally assist applicants – namely, registered practitioners, advocates and attorneys – has been omitted. This will have serious consequences, should the draft Bill be passed, as the applicant’s right to representation in immigration matters – a right entrenched in the Constitution – would be removed.
The related advisory professions would also lose their current recognition and right to practice in this field would be obstructed by the Department. This omission will result in an unregulated industry in which anyone would be able to advise applicants, causing confusion among potential applicants, who should seek out the advice of regulated practitioners. Our services to you as our clients will continue as normal while we take up these issues at the highest level of Government through our professional association. We advise applicants and companies to ensure that their immigration advisors are accredited by the appropriate professional body.
The amended Act also requires that all permit applications should be submitted in person at a Home Affairs office or an embassy overseas, although couriered applications have been acceptable in the past. The details of how this will work and what exceptions may be allowed are not yet known. This amendment is primarily driven by fraud and security concerns, and we will arrange and coordinate these visits with clients.
The amended Act seeks to prescribe the investment categories for which business visas may be issued. The Minister will be required, from time to time to publish a list of which sectors have been identified for investment.
Another proposal is to replace the existing Exceptional Skills and Quota Work permits with a new permit called the Critical Skills permit. The Minister will be required to publish a list of skills which the economy requires, but there is no indication at this stage of which skills will be selected.
Changes to Conditions and Status of an existing permit:
The draft Bill proposes that this process of changing WITHIN South Africa for holders of visitor and medical permits will only be permitted under “special circumstances”. It is our view that forcing applicants, especially family members, to apply for special permission to stay with their parent/spouse or to leave the country and apply from abroad would cause unnecessary costs and inconvenience.
Corporate work permits:
Intra-company and corporate work permits will be subject to a prescribed list of requirements which have not yet been made public.