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We are witnessing exciting developments in SA’s immigration landscape, led by home affairs minister Leon Schreiber. His recent announcement of a remote work visa and a forthcoming points-based work visa marks a shift in how our country welcomes foreign talent.

While the concept of points-based visas is provided for in the current regulations, it is not yet operational under the act, leaving us eagerly awaiting the new regulations promised by the minister. These regulations are not only expected to flesh out how the points-based system will work but also simplify the remote working visa option and enhance other visa categories.

We hope the minister will take into consideration the suggestions below to align SA with the immediate needs of the global workforce and position the country as a competitive and attractive destination for remote workers and skilled professionals. This modern approach to immigration would support our nation’s economic growth ambitions. 

Schreiber’s recognition that the job market, not bureaucratic processes, should guide visa eligibility is a pragmatic move. Flexible, user-friendly visa options indicate that the department is embracing its role as an enabler of economic growth. While these innovations are significant steps forward, critical areas need attention to ensure their sustainability and success.

Systemic issues within home affairs have had a negative effect on thousands of individuals and businesses, often leaving litigation as the only recourse to resolve delays or unlawful decisions. Now there is renewed hope that collaborative dialogue can replace this combative approach.

The department is embroiled in numerous high court cases, many involving contempt matters. Applicants have been frustrated by delays, wrongful rejections and a lack of response from home affairs. Under previous administrations my clients often had to escalate matters through litigation to secure rightful outcomes. The change of leadership at home affairs provides an opportunity to avoid these legal battles by ensuring urgent matters receive proper attention. 

The department must actively engage with legal representatives to find solutions, particularly in cases where court orders have been ignored. Such a co-operative approach would help prevent further legal action and facilitate more efficient resolutions. 

Two critical issues in the appeals process require immediate reform: 

  • Late appeals. Before January 2019 applicants could submit late appeals with valid reasons. This flexibility has since been withdrawn, leading to undue rejections and forcing applicants to reapply or pursue costly legal options. Restoring this flexibility would help rectify unlawful rejections without burdening the courts. 
  • Number of appeals. While limiting internal appeals may seem efficient, the department’s flawed decision-making processes often result in rejections that lead applicants to litigation. Allowing more than two appeals would reduce court cases and foster a more humane process. 

A number of visa categories also require attention: 

  • Intra-company transfer (ICT) visas;
  • Remote working visas; and
  • Critical skills work visas.

Despite our recent high court victory that obtained a rare substitution order, ICT visa holders continue to face unlawful restrictions preventing them from applying for a change of status within SA. This directive contradicts the Immigration Act and must be set aside.

Moreover, ICT visa holders are unjustly barred from applying for permanent residency after five years of holding their work visas, despite meeting legal requirements. The department must align its directives with the law. 

The newly introduced remote working visa needs urgent attention. Though Schreiber expressed optimism about this visa, its requirements are unappealing. Applicants must demonstrate a gross annual income of R1m, far exceeding thresholds globally. In addition, visitor visa holders cannot apply for a change of status or permanent residence while in SA, making this option less desirable.

In contrast, a retired person visa offers better terms and a clear path to permanent residence. To attract skilled professionals the income threshold for remote working visas should be reduced, in-country status changes allowed and a direct route to permanent residence provided. 

The existing critical skills list disproportionately favours applicants with formal qualifications, excluding many skilled individuals with extensive experience but lacking academic credentials. The Immigration Act allows visas to be issued based on skills and experience, yet recent changes to the critical skills list have restricted this flexibility, rendering them unlawful.

This misalignment undermines the intent of the Immigration Act and overlooks a significant talent pool. By failing to acknowledge experienced professionals without formal qualifications we risk missing valuable contributions to the labour market.

Recent developments in SA’s immigration policies present an exciting opportunity for the nation.

Revising the critical skills list to include experienced individuals is essential for addressing labour shortages and maintaining competitiveness. The framework governing critical skills visas should be re-evaluated to attract talent rather than impose bureaucratic hurdles. A truly free visa option is necessary to make SA appealing to global talent. 

The application process for various permanent residence visas also needs to be reviewed. There is inconsistency in how the department interprets section 26(b) of the Immigration Act regarding permanent residence applications by foreigners who are in long-term relationships with SA citizens. Home affairs’ practice of resetting the clock at marriage disregards prior years in a life partnership and creates confusion, penalising applicants who should qualify. 

Applications based on relationships with minor SA children continue to be unjustly rejected due to outdated regulations. From December 2019 South Africans are no longer required to demonstrate their ability to financially support foreign applicants. Despite this repeal, applications are still denied based on misapplied criteria. 

There is potential for the department to improve efficiency and revenue generation for applicants with a minimum net worth of R12m, who can pay R120,000 upon approval for permanent residence, creating an opportunity for home affairs to enhance its financial standing. Lengthy waiting periods and wrongful rejections due to the department’s inability to confirm funds are unacceptable. Streamlining the processing timeline would attract more applicants and increase revenue. 

Regularisation applications, designed for individuals who have become illegal foreigners or whose visas have expired due to circumstances beyond their control, offer a fair opportunity to rectify their legal status. Home affairs is required to consider applicants’ reasons for overstays and can grant them authorisation to remain while applying for a new visa.

However, in practice the process often deviates, leading to unnecessary penalties and lengthy appeals. This mismanagement deters individuals from coming forward to regularise their status. Reform is needed, including better training for home affairs officials to ensure fair application of the law. 

Another issue arises when individuals leave the country without a valid visa, leading to bans on their return. Previously, they did not have to explain why the ban should be lifted, but now face cumbersome processes. Streamlining these procedures would alleviate burdens on applicants and enhance home affairs’ financial position.

Recent developments in SA’s immigration policies present an exciting opportunity for the nation. By addressing the outlined challenges and aligning policies with the law, home affairs can create a more efficient, transparent and attractive immigration framework. Embracing the full spectrum of skilled professionals, regardless of their formal education, is crucial for harnessing the complete potential of our workforce and ensuring SA remains a desirable destination for talent. 

• De Saude Darbandi is with De Saude Darbandi Immigration Attorneys.

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