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New immigration rules effective under a cloud of criticism

Regulations set to tighten loose ends to a system once abused.

JOHANNESBURG – The amendment of immigration rules by the Department of Home Affairs is officially effective, despite being under a cloud of scathing criticism for being too harsh for foreigners.

Incoming Minister of Home Affairs Malusi Gigaba on Thursday announced that the new immigration rules which extend to visa applications, permanent or temporary stay and foreigners looking to set up businesses in South Africa, are consistent with international standards.

But the new rules have come under fire, as concerns mount on whether Home Affairs has the capacity to deal with the possible red tape which comes with the new legislation requirements.

Gigaba says the new rules are in a bid towards “strengthening security elements” in South Africa, as immigration rules in the past have been open to “abuse”.

He also says that the department is aware of the unhappiness the review has created, but Home Affairs will increase capacity to meet with the demand of its services.

The review of immigration laws are as follows for visa applicants:

– Using agents or lawyers as representation for visa applications is prohibited, as all visa applicants should make the application themselves.

– People who enter South Africa as visitors are barred from renewing or changing their visa status in the country. Foreigners must renew visas from the country they reside in.

– Visa applicants will have to prove that they have been in a relationship with their foreign spouses or life partners for at least two years to qualify for a visa. Life partners are subject to interviews on the same day to confirm the authenticity of their relationship.

– The duration to apply for or amend a visa is 60 days before it expires. Failure to do so will result in a person being illegal in a specific country.

– Overstaying after an expired visa is prohibited. Rather than being fined, such offenders will now be declared “undesirable”.

Immigration consultant at New World Immigration, Charl Vollmer says the new immigration rules are unconstitutional. Vollmer adds that the amendments “have a lot of effect on foreigners” especially the section which stipulates that a visa applicant can be banned from the country while awaiting a visa.

Gigaba contends that the new legislation is in fact “constitutional” as the rules have been benchmarked against the South African Constitution.

Regulations impacting business

The immigration rules also apply to the business community. Foreigners looking to set up businesses in South Africa have to ensure that 60% of their workforce comprises South Africans. The Department of Trade and Industry and Department of Labour will be involved in every application for foreign businesses to set up in South Africa. While the provisions for local procurement will offer employment to South Africans, Gigaba warns that this is not a panacea to the country’s high unemployment rate.

No business visa may be issued or renewed to a foreigner who intends on establishing or investing in a business that is listed as an “undesirable business undertaking”. The list of undesirable businesses will be gazetted next week. Also, a corporate visa will be issued to South African corporate applicants to employ a number of foreigners for a period not exceeding three years, after showing the need for employment of such foreigners.

Global Migration SA managing director Leon Isaacson says the regulations that the foreign business community have to comply with (for their foray into South Africa) may hinder the level of investment the country sees.

“The additional administrative burden on applicants, together with slow processing of applications, compulsory overseas filings and a generally unfriendly set of rules, will sadly make investors think twice about our country as their first choice in Africa,” Isaacson explains.

Gigaba says the new immigration legislations have to balance the security needs of the country and the economy. “What one cannot afford to do is take into consideration the needs of the economy and neglect security,” he explained.

Those wanting work visas into South Africa are also impacted. A critical skills work visa has been introduced into the Immigration Act – a list of critical skills will be gazetted.

He further says that none of the clauses in the Immigration Act “are cast in stone” and should the regulations be found to be harsh towards the business community, they might be subject to more amendments.

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