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

Business Day - Business Law and Tax Review - - FRONT PAGE - EVAN PICKWORTH

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



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