The criteria for entering the country doesn’t fall into a points system, but Andreas Kensel outlines the paperwork you need to move here.
South Africa is still a popular immigration destination. The government has only recently reaffirmed their position that foreign investors as well as foreign immigrants are needed and much wanted. The lack of skills has been identified as one of the major constrains for reaching the intended 6% annual growth of the South African economy. In order to modernize their immigration laws South Africa introduced the Immigration Act, its Amendment Act in 2004 and the Immigration Regulations in 2005.
To apply for residency the following options exist:
Upon entry of South Africa most visitors are still granted a 90-day visitor permit. This permit can be extended once for another 90 days from within South Africa.
Under the previous legislation it was possible for visitors to stay up to 36 months on an extended visitor’s permit. Unfortunately this option does only further exist in very limited cases under the new law. The extended visitor permit is limited to applicants who intend to do academical sabbatical, voluntary or charitable activities, research activities for universities or are the spouses of temporary residence permit holders.
For business permits as well as permanent residence based on business, an applicant will now (beside his personal documents) have to submit a business plan, a certificate from a South African Chartered Accountant confirming the amount of capital available to be invested into the book value of the applicant’s business as well as an undertaking to employ at least five South African citizens. The employment should be created within the first two years of business. The Immigration Act only requires that the employees shall be permanently employed. There is no legal certainty as to whether the employees are entitled to work limited amount of working hours.
Applicants are allowed to invest less than the generally requested Rand 2.5 million into their business if the Department of Trade and Industry recommends the intended business. In order to qualify for a recommendation the DTI has introduced a scorecard. The issuing of such letters was recently centralised with the DTI in Pretoria. This has led to considerable delays In practise this recommendation is granted in most of the applications if the business plan is detailed enough and the criteria of the scorecard are met.
Employees
Applicants who wish to be employed by a South African company can choose between four categories of work permits, namely exceptional skills, intra-company transfer, quota and general work permit. The first two are granted without much difficulty.
In order to obtain a general work permit, the open position has to be advertised and the employer has to keep records of all local applicants for the advertised position and state the reasons why such applicants were not sufficient for the position. Additionally, a new benchmarking procedure has been introduced, which is to confirm that an applicant’s salary is not inferior to that paid to employees in South Africa in the same market segment.
One of the most significant changes in the last year was made to the Quota Work Permit. While before May 2007 the quotas were defined by experience as well as level of education South Africa has now follwed the international example and has introduced quotas for certain professions. The biggest quotas were allocated to Building and Engineering Technicians, in total over 5.500, Argicultural and science technicians as well as Biomedical Engineers.
For an application for a quota work permit, the requirement of a certification by the Department of Labor has fallen away. Further, the need to submit a job offer, contract of employment or any documentation by the future employer has been deleted. This may have the effect that foreigners will qualify for a quota work permit even if they are not in possession of a job offer.
However, for all work permit applications it is now required to supply an ‘Evaluation Certificate for Foreign Qualifications’ of the certificate of highest level education of an applicant. Such a certificate is issued by SAQA (The South African Qualifications Authority) and is to help to compare foreign qualifications with South African qualifications.
Spouses of South African citizens or permanent residents will only qualify for permanent residence if and when their spousal relationship has existed for at least five years. Proof of a life partnership will have to be provided by means of an affidavit and proof of cohabitation as well as sharing of financial liabilities. The requirement of a notarial contract, however, has fallen away.
If the holder of a temporary residence permit wished to extend his current permit or change its status, such application must be submitted 30 days prior to the expiry of the current permit.
Despite the fact that the legal requirements are clearly defined in the legislation, the practical side in obtaining a valid residence permit unfortunately is not so straightforward. During the past two years the service delivery of the Department of Home affairs has certainly not improved. Staff motivation and skills are low resulting in lost documentation, extended application periods and sometimes wrong decisions.
Our immigration team will be glad to assist with any further questions regarding the above and all other changes or any immigration matter you might like to discuss.
