System is being clogged up
A REVIEW OF THE GOVERNMENT GAZETTE AND NEW DEVELOPMENTS IN LAW No end in sight to chaos caused by immigration laws effected without a transition period
NEW immigration laws continue to give foreigners grey hairs, with those who have been labelled “undesirable” clogging up the Department of Home Affairs’ appeals unit or, if wealthy enough, taking the government to court.
Thousands of foreigners reportedly still have not received their new visas or permits — two months after the new laws were promulgated — and have been banned from being in SA.
Confusion continues to reign, with director for immigration at law firm ENSafrica, Zahida Ebrahim, saying she receives numerous requests daily from foreigners who had overstayed, according to the rules, and want to appeal that decision.
Immigration expert and attorney Craig Smith says his time is now mainly spent dealing with high court proceedings as wealthier clients, who are “affronted” by being labelled undesirable, take to litigation.
Previously, foreign nationals waiting for a decision on their visa renewal could travel using a receipt from Home Affairs, indicating their application was pending. This is no longer the case. Anyone traveling on an expired permit can be declared “undesirable” and banned from returning to the country for up to five years.
While it is possible to speed up the appeal by showing urgency, Ebrahim says the whole process remains “fraught with difficulty”. “Very often, business travel is urgent. I think the department still has some way to go in educating the public,” she says.
Smith says the problem is that the department is adopting a “rubberstamped process” and declaring foreigners undesirable as a matter of course. He says the department has an “obligation to apply discretion in a proper and humane manner”, but was not doing so.
“There are no grounds for leniency and these people are being kicked out of the country. Not only do wealthier foreigners form a major part of SA’s tax base, it is creating a very negative perception of SA. Foreign wealthy people have upped and left in numerous cases,” he says.
It is leading to an increase in litigation by those who can afford it. According to Smith, the government is opposing these applications “as a matter of course”. But shortly before applicants arrive, or on the court day, a concession is “usually made” for them to be able to stay.
But using the courts is not open to everyone and he says “thousands” of foreigners without the money to litigate have been left sitting in queues and trying to use online appeals facilities. This would include first informing the director-general of Home Affairs at the nearest embassy within 10 days of the appeal, or appealing to the Minister of Home Affairs directly using the Home Affairs website.
“It is draconian and leaves these foreigners in a very compromised situation. I advise clients to follow their appeal with a phone call to confirm it has been received. But you can’t get through to the department [on the phone],” says Smith.
Government notices were issued on May 22 confirming that the president had determined that the Immigration Amendment Acts 2007 and 2011 would come into effect on Monday, 26 May 2014. The government is attempting to align SA with international trends and prevent abuse of the system, which made it relatively easy for foreign nationals to enter and exit SA.
A senior associate at Fasken Martineau, Lameeze Jean-Pierre, says: “It made SA a choice destination for the unscrupulous and left this area of the law ripe for reform.”
But the haste with which the revised laws, particularly the regulations, came into effect without any transitional period has “left officials at the Department of Home Affairs hamstrung and foreign nationals, particularly those at various stages in the work visa application process, in a state of uncertainty, some even trapped in SA, faced with the potential threat of being declared undesirable persons upon exit”.
The department had not responded to questions at the time of writing, including whether they intend improving their ability to handle the deluge of complaints. A simpler solution is clearly needed. The law, as it stands, is not out of bounds with what is happening elsewhere in the world. But all the bad apples among immigration applicants should not spoil the entire broth.
It is already chasing skilled workers away and, at a minimum, is damaging sentiment.
Those who overstay their visa for
even one day will automatically be declared an undesirable person. For an overstay of 1 to 30 days, the person will be declared undesirable for 12 months, for a second overstay of 1 to 30 days within a 24-month period the person will be declared undesirable for a period of up to two years and for any overstay of more than 30 days the period of undesirability is five years.
Ebrahim says it is imperative to allow sufficient time not only for processing applications for renewal of a temporary residence, but also for any delays that may arise.
The array of work permit rules, meanwhile, has made finding the right permit a difficult task in itself. Australian immigration expert Garry Loseby says that attaching strict requirements to work permits has helped the Australian economy find important skills when needed, and to control inflows at the same time. But he says the key is having a very good structure in place, with regular revisions, to help professionals streamline the process for applicants. This is lacking and will clearly take time before we can think of reaping the benefits of a work permit system that is well aligned with economic needs.
In terms of the regulations, the quota and exceptional skills permit categories have been removed and a critical skills work visa category has been introduced to facilitate application for foreigners who meet the minimum qualifications and experience on the critical skills list. It covers more sectors “but does not sufficiently cover SA’s wide skills deficit areas in a manner that constructively attracts the skills required for economic growth”, says Ebrahim.
AFRICA’s economy has shown high growth potential in the past decade. The continent’s biggest trading partners in terms of value are either the European Union or, to a lesser degree, the US.
In the past decade trade between Organisation for Economic Co-operation and Development ( OECD) countries and Africa has doubled in nominal value. Even though trade between Africa and OECD member countries has grown and will continue to grow, the rapid pace at which trade between Africa and non-OECD countries grows, through the likes of China, Russia and Brazil, signals that the emerging economies might surpass the OECD member countries in the imminent future.
Accordingly, we have seen numerous European member companies trying to tap into the profit potential in Africa. In doing so there are a lot of uncertainties regarding the tax and legal regulations of entering and extracting the expected profits to be repatriated.
Asian countries such as India and China were often the targets for lowcost and low-risk manufacturing and