December 2013 Newsletter

CURRENT DIFFICULTIES BEING EXPERIENCED WITH THE DEPARTMENT OF HOME AFFAIRS

As always our plight continues within the Department of Home Affairs to ensure that application are processed as speedily as possible.

We would love to be reporting that all is going well on the service delivery side at the Department of Home Affairs at regional offices, embassies, high commission and consular offices as well as at the central adjudication hub of the Department of Home Affairs at its head office in Pretoria. However such a statement appears to still be a pipe-dream.

It is important that we draw to the attention of clients some of these difficulties as they impact on all applicants.

The first area of concern is that, on a unilateral basis, various offices of the Department of Home Affairs, both locally and abroad, have of late been imposing terms and conditions on acceptance of applications for lodgment, many of which are not founded either in the Immigration Act nor its Regulations nor any of the departmental directives of the Department.

This brings about a large degree of uncertainty as the Immigration Act and its Regulations prescribe precisely what documents must be lodged with any application, whether they should be originals or not and what certifications should accompany the application. We find that applicants arrive, fully compliant with this and are told about “new” requirements. The resultant problem is that the officials concerned then refuse to take the application in unless there is compliance with these “new” requirements.

Protestations that these documents are not required and are not prescribed for in any of the legislation or regulation very often falls on deaf ears.

Issues such as these are out of the control of the applicants and ourselves but every endeavour is indeed made to ensure that this process goes smoothly.

This brings me to the next issue which relates to the time it is taking to process applications. Despite the department’s protestations that the “turnaround project” has reduced processing time on applications. This statement is not entirely accurate.

 

What has happened is that applications are being “lost” or “misplaced” and we are necessitated to lodge copies of the applications at the central processing hub. Alternatively applications are not dispatched from the regions to the central adjudication/processing hub and it is a very difficult task to then track where an application is at any given time.

Notwithstanding all of the above our office continues to strive and endeavors on a day to day basis to bring matters to finality and final adjudication as soon as is possible and we do report that our applications are indeed all finalized, albeit with some of them taking longer than what would be acceptable due to circumstances beyond our control.

The end December/beginning January slow-down is hopefully coming to an end where the department starts coming out of its “go slow mode”.

We assure you of our best attention to matters at all times.

IMMINENT CHANGES IN THE IMMIGRATION LAW AND REGULATION

The Immigration Amendment Act 13 of 2011 was indeed signed into law in July of last year.

It has not yet come into operation with the reason being that the Immigration Regulations which it empowers have not yet been finalised. The process for finalisation means that stakeholder consultation must first take place and the draft regulations must be placed before the Immigration Advisory Board in order that the IAB might advise the Minister on issues surrounding the Regulations.

Then, and then only can the Minister present the draft Regulations to Cabinet for approval.

A date is then announced on which the Amendment Act and the new Regulations will come into force and it is expected that this will happen within the next few months.

This begs the question as to what the changes will hold for clients of the Department of Home Affairs.

The Amendment Act itself brings about certain minor technical amendments. Some of the more important amendments were embodied in the 2007 amendment to the Act which has never, despite having been signed into law on the 27th of June 2007, come into operation.

Where the rub lies is that the Regulations may very well change the face of how we deal with the Department of Home Affairs on many types of visas and permits.

One of the areas which most certainly will be changing and the department has already in many instances begun implementing this is a restriction to be placed on changes of status.

Simplistically put, a restriction on a visitors permit which in any way restricts extendibility or change of status will now be strictly enforced and technically the individual will have to go back to their country of departure and usual residence to apply for any alternate visa, an extension of an existing and/or change of status to a new type of visa or permit. Hopefully the Regulations will define what “special” or exceptional circumstances are.

It appears likely that the Department of Labour is now going to become more involved in the work permit process and that it will in all probability become a regulatory requirement to submit, after advertisement has been placed and other requirements complied with, any work permit application or change of employer to the Department of Labour for their recommendation. This was a failed exercise under the previous Immigration Legislation purely because the Department of Labour was not capacitated to deal with the situation, took a very narrow view on interpretation of needed skills and it is believed as a result of that work permits at that time were taking up to 6 months to finalise.

In recent times, Labour Department has already become involved and is already causing delays in many types of applications. Some of the requirements being imposed, and likely to be incorporated into policy are not provided for either in the Immigration Legislation (as amended) or in any existing Regulations.

The quota work permit under Section 19(1) of the Act and exceptional skills permit under Section 19(4) of the Act will fall away in their current guise and be replaced by a Critical Skills permit.

It would appear that only where the skill is “critical” (which is not defined) and the project is in the national interest (this concept also not defined) that one will be able to get a work permit.

We are monitoring the situation and suggest that you watch this space for further updates which will become available as soon as the changes are in place.

RENEWING YOUR WORK PERMIT

As an employer, it is important to keep in mind that in taking up a foreign national into your employ on a work permit and in drafting the contract of employment that you make provision for renewability of the contract of employment. Often contracts of employment are granted for a specified duration only and, specifically in instances where a general work permit is being applied for, the employer that has to go through the process of advertising in the national printed media and obtaining a salary benchmarking etc. Where a contract is for a specified duration and no provision is made in that contract for the renewability of the contract of employment then, should the employer require the foreign nationals continued employ beyond the specified duration in the contract, it would mean that a brand new general work permit would need to be applied for. This would then entail having to go through the process of advertising in the national printed media and obtaining a salary benchmarking all over again. These are obviously additional and unnecessary expenses for the employer.

We do always advise our clients to ensure that in drawing up a contact of employment with a foreign national, even where the contract is for a specified duration only, that you include a paragraph in order to allow for the possibility of the renewal of the work permit, should this need arise.

In respect of the employee, as a foreign national in South Africa, on either a general or quota work permit it is important to keep in mind the requirement of a confirmation of employment.

The Immigration Act specifically requires in the case of a general work permit that employment be confirmed within six months of having obtained the permit and every twelve months thereafter.

In the case of the quota work permit, confirmation of employment is required to be attended to within three months of entering South Africa, if the work permit is obtained without having been offered a job in South Africa as of yet and every twelve months thereafter.

The confirmation of employment application process ensures the continued validity of the work permit.

In respect of renewing a work permit in either of these categories, the Department of Home Affairs is entitled to request that the most updated confirmation of employment be provided to them in order for them to be able to attend to any extension process.

Furthermore, we have specifically seen this issue being brought forward in respect of applications for permanent residence where the Department of Home Affairs requires proof that the applicants confirmation of employments are up to date.

AS ALWAYS, WE ENDEAVOUR TO KEEP YOU UP TO DATE ON ALL IMMIGRATION RELATED ISSUES

JULIAN POKROY AND TARRYN POKROY RIETVELD AND THE TEAM AT JULIAN POKROY ATTORNEYS