LAW: Upcoming Changes to the South African Immigration Act
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The new South African immigration act amendments took a big step nearer
completion this week as the ruling African National Congress was forced
to use its majority muscle to push the Immigration Amendment Bill
through the National Assembly.
Whilst we must point out this has not yet been signed into law our continued viewpoint is that despite severe opposition it will be in the very near future. As demonstrated in the latest presentation of the proposal the minister seems determined to see these changes become law.
The bill has attracted considerable criticism with its provisions and was in fact rejected by all the main opposition parties. The Democratic Alliance (DA), the Congress of the People (COPE), the Inkatha Freedom Party and the African Christian Democratic Party (ACDP) all said during debate on the bill that they would oppose it.
Two of the areas of particular concern were the requirement that foreigners in SA to return to their home countries in order to change the status of their visa and also that the bill was arguably unconstitutional for banning immigration practitioners and attorneys from lodging visa and permit applications on behalf of their clients.
Home Affairs Minister Nkosazana Dlamini-Zuma angrily rejected opposition arguments that the bill would harm SA’s image abroad and that SA would fail to attract scarce skills,
Further details can be read on http://www.businessday.co.za/articles/Content.aspx?id=137877
1) Right of representation and role of Professional Immigration Advisors
A hot topic which will have severe repercussions in the event the draft bill is passed. In essence it repeals the right for professions to be granted power of attorney to legally assist applicants - namely, registered practitioners, advocates and attorneys. Whilst the minster has stated that the advice can be provided by afore mentioned the interaction at submission and psot submission would be between the department and the applicant.
It is Intergate and FIPSA (Federation of Immigration Practitioners) that thw right to legal presentation is firmly entrenched in the Constitution. As a presumptive action the department has already been contacting applicants directly, even though the Bill has not been implemented. In many cases the advice given by Home Affairs officials is incorrect, unlawful and not in the interests of the applicants concerned.
This repeal may result in an unregulated industry in which anyone would be able to advise applicants, causing confusion among potential applicants, who should seek out the advice of regulated practitioners.
2) Applications must be made in person and in most cases in the applicants home country
The draft Bill also requires that all permit applications should be submitted in person at a Home Affairs office (allowable only in certain cases just as a renewal of a permit) or an embassy overseas, although couriered applications have been acceptable in the past. There is still much confusion around this issue and no clear directive as to how it will play out.
As per our previous correspondence if you are in South African and have not yet submitted your application it is critical this is done now. A failure to do so could result in you incur extra expense and needing to return to your home country and make a submission.
Intergate continues to interact and submit with embassies around world with great success, in anticipating the bills approval we have already built up sound processes, excellent knowledge and had many permits issued.
3) Permits to become visas
All temporary permits are proposed within the bill to be referred to as Visas going forward, only permanent residency applications will still be deemed a permit.
4) Business Permits – (proposed business visas)
Investment categories will be identified by a published list of undesirable and hence we assume desirable business sectors .
The Department has given no further information on what these will be.
It is essential all business permit (visa) applicants make there submission forthwith.
5) Exceptional and quota work permits (henceforth visas)
Exceptional Skills and Quota Work permits are to be replaced with a new permit called the Critical Skills permit/visa. The Minster will be required to publish a list of skills which the economy requires, but there is no indication at this stage of which skills will be selected.
It is essential all exceptional and quota permit (visa) applicants make there submission forthwith.
6) Changes to Conditions and Status of an existing permit:
This area remains un-clarified but our view is that it essentially means all tourist and medical visa applications will not be allowed to altered – in short those entering on these types of visas will be required to leave South Africa to make any other permit or visa application.
For those on tourist or medical visa's seeking to change the conditions and status an application needs to be made forthwith.
7) Corporate work permits
Corporate work permits will be subject to a prescribed list of requirements which have not yet been made public.
If you are considering making an application for a visa or permit it is essential that you contact your advisor immediately.
There is little doubt in our minds that aspects of the new proposed legislation will be challenged in law under constitutional rights. This coupled with the forthcoming changes will result in confusion at the department and indeed with the precise details of the new requirements. Intergate continue to interact at the highest levels and with industry colleagues to ensure we continue to provide the best service we are able to under these trying circumstances.
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