MUNYARADZI NKOMO: Immigration amendments a step forward but raise further issues

On February 8 the home affairs minister published a draft second amendment to the 2014 immigration regulations for public comment. The draft regulations aim to implement various Constitutional Court judgments wherein the minister was instructed to enact certain legislative changes to align parts of the immigration regulations with constitutional imperatives.

Among the notable proposals in the amended regulations are the introduction of a remote working visa and certain modifications to the critical skills visa. While these changes represent positive steps, some aspects of the proposals appear to lack thorough consideration or alignment with the SA economic context.

Remote working visa

The draft regulations propose extending section 11(2) work authorisations to encompass remote work for foreign employers. The amendment introduces a minimum annual income from abroad equivalent to not less than R1m. This visa can be valid for up to three years, with individuals staying in the republic for more than 12 months required to register with the SA Revenue Service.

The surge in remote working after the Covid-19 pandemic has led several countries to introduce visas allowing remote work within their borders. Most of these countries impose minimum income requirements consistent with their general financial means criteria for all visas.

However, the proposed annual threshold of R1m, or R83,000 per month, stands as one of the highest globally, surpassing even the estimated cost of living in the world’s most expensive country, Monaco. This disparity compared with the monthly income thresholds of other SA visas, such as the relatives visa at R8,500 a month and the visitor’s visa at R3,000 a month, appears unjustified. Maintaining such a high financial threshold is likely to deter rather than attract remote workers.

SA may struggle to compete in a global market where countries such as Mauritius offer a premium visa with an income threshold of $1,500 a month. Reducing the income threshold substantially and requiring medical insurance could address concerns about burdening public services while broadening the visa’s appeal.

Critical skills visa

Another welcome change is the proposed amendment to Regulation 18(5)(b), addressing the challenge of obtaining professional body registration. Present regulations mandate applicants to secure registration with an accredited professional body and obtain a skills confirmation letter from that body. However, some professional bodies require applicants to possess a work visa before membership, creating an obstacle to entry for much-needed skills.

Simply substituting paragraph (b) without a similar change to sub-regulation 5(a) won’t eliminate this barrier. Aligning the regulations with the withdrawn directive 22 of 2014, which required only proof of application for membership, may prove more effective.

A curious addition is the proposed introduction of a points-based system to the work visa scheme. The regulations suggest using such a system based on criteria determined by the minister, including age, qualifications, language skills, work experience, employment offers and adaptability within the republic. However, the regulations lack clarity on how this system will function or the sufficient points threshold.

A points-based immigration system isn’t new, having  been successfully implemented in countries such as Australia, the UK and Canada, though clarity and national consensus are crucial. Those countries developed their systems over years with clear national objectives. SA’s immigration system lacks such consensus and tends to be more restrictive, as outlined in the draft policy paper published by the department of home affairs in 2023.

The preamble to the Immigration Act emphasises issuing visas expeditiously with simplified procedures and reasonable requirements to avoid excessive administrative burden. While proposed changes such as the introduction of the remote working visa and easing critical skills visa requirements are positive, inadequate consideration may lead to a more cumbersome visa process, contradicting the Immigration Act’s objectives.

Since regulations are subordinate to the act, they can be challenged if deemed inconsistent with its stated objectives.

Nkomo is an immigration specialist and director at Strategies Migration Services SA.