Immigration Amendment Act passed by Parliament

Immigration Amendment Act passed by Parliament

By Andreas Krensel and Dirk Meissner, IBN Consulting and Immigration,  Krensel@ibn.co.za  

For the last 6 months experts debated the controversial Immigration Amendment Act (IAA), proposed by the South African Department of Home Affairs (DHA). In spite of heavy protest from all sides of the spectrum, from refugee organisations to business associations and law firms, the ANC majority pushed the amendments through Parliament at the end of March 2011. The IAA still needs to pass the National Council of Provinces and get signed by President Zuma, before it can be gazetted. We expect various legal action against the new law, especially once the Immigration Regulations are published, which will give more operational detail on what foreigners can expect to deal with in future when wishing to immigrate to South Africa.

There are a number of concerns in our opinion. South Africa has one of the highest numbers of immigrants in the world, mainly from other African countries who want to live in the powerhouse of the African continent. However, there is a lack of greater vision on who we want in the country and in what numbers. Sure, the country requires foreign direct investment as well as skills to be brought in, and the IAA acknowledges that. But the procedures are not clearly defined and the process, given the global competitive demand for both capital as well as skills, is often too complex, inconsistent and unpredictable.

The intentions of the DHA are certainly to improve its service levels, but experience over the last 10 years has shown, that any changes in operations have resulted in large scale confusion among Home Affair’s employees, thus generating uncertainty for the applicants. Both staff and systems simply do have not the capacity to cope with changes. In light of the aforesaid, it is particularly disturbing, that the Minister wants to abolish any representation by attorneys, advocates and immigration practitioners, who are experts in guiding applicants through the permitting jungle. The facts of course remain, that DHA is unable to properly advise foreigners and that professionals, who prepare permit applications well, actually reduce the amount of time required by officials to process applications.

We will see how this issue will be sorted out. DHA now wants personal submissions, meaning there will be long queues of people applying for even temporary residency permits, such as work, business, study or retirement. Professional advice and coaching before submission will become essential in order to avoid frustrations.

There are a large number of changes stimulated. We will only be able to advise on those, once the Regulations have been published. However, more decision power will be moved to the Minister of Home Affairs, who historically has hardly ever responded to any request sent to her, thus adding uncertainty. Also, a number of permits will be abolished such as the exchange and extraordinary skills permits. Most first application as well as for changes of term and conditions such as change of employer or from study to work will need to be submitted in the applicant’s home country.

We will keep the readers informed on these developments. The best way to achieve security of stay in South Africa at present though is to apply for Permanent Residence before the new laws come into effect. Foreign investors are still most welcome in South Africa, but will need to allocate more time for the immigration process.