With an overhaul of South Africa’s immigration system imminent and uncertainty over the impact of some of the proposed changes, concerns are being expressed and companies are advised to keep a close watch. Liesl Venter finds out more.
The White Paper on Immigration released by the Department of Home Affairs in July this year will introduce significant changes to the immigration landscape and, while much is still up in the air, companies can expect to fork out more.
“It is virtually going to become impossible for a foreigner working in South Africa to become a permanent resident (PR) and, following that, a full citizen,” says Johan Lubbe, Managing Member of Immigration Boutique. “If one looks at where they are going with this, it becomes clear the government is only going to take the cream of the crop and they simply do not want permanent resident holders.”
The best advice to anyone considering citizenship in South Africa is therefore to apply sooner rather than later because come 2019 it will be near impossible.
According to Gavin Colaco, Practice Leader at Fragomen Africa, the movement from PR to citizenship should not be an issue for employees, nor be relevant in the employer/employee relationship. “A PR holder enjoys the same rights as a citizen, except participation in elections into government structures (local, provincial and national). A PR holder does not require a work visa and can change employment at any time without limitation, just like a citizen. There should be no impact on the company when a PR holder has difficulty to qualify for citizenship, unless the company rules specify that some roles are only for citizens, and if that is the case, then the company itself could be adopting unfair labour practices that are constitutionally illegal,” Colaco says.
But, should employees be restricted in getting PR status, it will be a different story altogether – as the only option open to foreigners will be work permits.
According to Colaco, South Africa still remains a strategic country for companies to use as a base and to make inroads to the African continent for business growth and investment. “The challenges with immigration do present hurdles to the smooth deployment of individuals into South Africa and the trend continues. This does definitely impact the ability to import the appropriate and much-needed skills into the country to catalyse growth and development,” he says.
“For instance, there is a specific type of visa called the Critical Skills Visa which is designed to respond to companies’ needs for skills by attracting talent in those skill shortage areas. However, the challenge lies in the fact that the skills list needs to be updated and published by the Minister responsible, after consultation across all government departments and industries that require skills that are either not available or in short supply. The last time this was done was back in 2014 resulting in the skills list being potentially outdated. Therefore, companies struggle to bring in bright talent involved in cutting-edge technological advancements, owing to the fact that this visa category operates on an outdated skills list,” Colaco explains.
He says the biggest challenges with the White Paper are the inconsistent decision-making (adjudication) both in South Africa and foreign missions, the long turnaround times that are also inconsistent from mission to mission and country to country, the varying interpretation of the immigration legislation, and the ongoing requests for additional documents and information not in the legislation.
According to Hanniff Hoosen, DA Shadow Minister of Home Affairs, while the approach to introduce more control over one’s borders is commendable, a restrictive approach can be damaging. “The barriers to entry being created are questionable. We are introducing a restrictive system for those who comply with the law while at the same time making it extremely easy for immigrants who don’t comply to literally just walk across our border. It does not make sense,” he says.
According to Hoosen, while the changes in the immigration policy will impact on business, the bigger fear lies in the message being sent to the rest of the world – that it is difficult to do business in South Africa.
Gershon Mosiane, Chairman of the Forum of Immigration Practitioners of South Africa (FIPSA), says even applying for work visas is becoming increasingly difficult and fewer and fewer are being issued every year. “It is costing companies huge amounts of money to apply for these visas and there is no guarantee their employees are going to get them,” he says.
“We are currently working on a case where a metal manufacturing company is about to shut its doors as the skilled experts it has brought in are not getting their visas,” Mosiane adds.
He says the critical skills list is also questionable. “They have sheep shearers on that list, but engineers working at a manufacturing plant employing hundreds of South Africans are not able to get a work visa. This makes no sense,” Mosiane says.
According to Lubbe, it is not only becoming increasingly difficult to apply for these visas but also more expensive. “Companies are best advised to keep a close eye on these policy developments. It is still extremely uncertain and difficult to say what the exact impacts will be, but indications are that the negatives at present far outweigh the positives.”