1. Group takes action against Home Affairs' service delivery
2. Home Affairs amendment will destroy 4000 jobs
3. Crackdown on SA's work permit laws could see economy lose millions
4. User-friendly laws and predictable processes needed to attract foreign skills and investment beyond 2010
5. Facing new challenges in the immigration arena
6. Inadequate provision for skills requirements on new quota list
7. Misinformation can hinder companies from filling scarce skills gaps
8. World Economic situation makes South Africa Attractive to Skilled Foreigners
9. More skilled workers are moving across borders
10. Foreign workers may hold dual citizenship in South Africa
11. Minimise the risk when you hire from the International Community.
12. Class action to be filed against Home Affairs on permanent residence issue
13. Are you eligible for permanent residence in South Africa?
14. Having the correct work permit is critical
15. Fly by night operators cash in on demand for foreign skills
16. Choose your immigration practitioner carefully
17. Court ruling makes foreign skills more accessible to SA employers

Group takes action against Home Affairs' service delivery

Home Affairs' continued inability to meet its statutory obligation to process work permit and other temporary residence applications within 30 days has prompted several immigration practitioners from around the country to petition the Minister on behalf of more than 1 000 affected companies and individual applicants.

The petition, sent via a legal firm on Friday 6 August, is the first step in a group action that will lead to an urgent application for the courts to compel the Department to issue the permits – some of which have been pending for nine or 10 months – if Home Affairs is not able to resolve the matter by Friday, August 20, says Leon Isaacson, the chairperson of the Forum of Immigration Practitioners of South Africa (FIPSA).

"Such a court action will be far-reaching as it will override the rights and current responsibilities of the Minister, as we will ask for an interdict to be issued in terms of the Promotion of Administrative Justice Act (3/2000), which focuses on these kinds of public service delivery issues," Isaacson says.

He explains that the delay in processing the permits has serious practical implications: foreign workers whose skills are needed in this country can't take up employment, South African companies who need these skills can't continue with major projects, international investments that are time-sensitive can't go ahead, and students from other countries can't begin their studies on time and, in some cases, even lose their bursaries and residence options.

"Home Affairs' service breakdown also means that people's rights are being violated," says Isaacson. "South Africa has a strong Constitution and a strong rights culture. An individual or company who places an application for a permit has the right to a predictable and speedy process and outcome, and proper legal reasons for decisions, as is called for in the legislation."

Isaacson says the huge backlog of permit applications was exacerbated by the 2010 FIFA World Cup, which kept Home Affairs' staff preoccupied, and is now being worsened by the Department's recent decision to implement the centralisation of all permit applications at its Pretoria head office.

"A short pilot project was carried out in Gauteng earlier this year during which we observed delays in the processing times of applications submitted via the three branch offices involved in the pilot. The quality of the decision-making by the Pretoria Home Affairs staff also declined noticeably after the launch of the project and has continued to be poor," said Isaacson.

The Pretoria head office started off with a backlog of about 8 000 applications, to which about 5 000 new applications were added every month since January 2010 when it began adjudicating the branch offices in the Eastern Gauteng region during the pilot project, he says.

The centralisation process was to have been phased in at regional offices around the country by March 2011, the end of the financial year, but instead the process was condensed and implemented without proper warning or planning as from 1 June 2010, according to Isaacson. The workload and backlog has clearly increased beyond manageable levels.

"We believe Home Affairs does not have sufficient resources, staff, or adequate systems in place at present to be able to adjudicate the volume of applications and provide information quickly on the applications."

The matter has become urgent as a recent meeting with Home Affairs' management in Pretoria - at which Isaacson represented FIPSA – has failed to bring any resolution or improvement.

He says that should it be necessary to ask a judge to issue an interdict, the group will request that the legal requirement for a 30-day turnaround time be enforced, and also that the penalties which often occur when a person's permit expires be suspended if they have a pending application.

"In addition, we will ask that that the Department be compelled to stick to the criteria laid down in the immigration act as we are currently being asked for documents and requirements that have no basis in South African law.

"If the officials keep changing the criteria and vary in the requirements that they say should be met without observing the requirements of the law, applicants and immigration practitioners do not know what they are meant to be submitting, and the result is that the rejection rate on permit applications goes up. An appeal procedure, which may take six to 18 months then follows, creating a further backlog."

The move to address the breakdown in Home Affairs' services follows a recent group action against the Department on a trucking issue that held serious economic consequences for the SADC countries. The truck operators, whose foreign drivers were being prevented from crossing the South African borders when Home Affairs began incorrectly enforcing a work permit issue without warning, won an interdict against the Minister on Wednesday (28 July), to allow them enough time (3 months) to meet the legal requirements, and compelled the Minister to issue short term visitor visas with permission to work, at the Border, which was the previous arrangement.

Home Affairs amendment will destroy 4000 jobs

17 August 2010

The proposed amendment to the current Immigration Act which would remove Immigration Practitioners from the Act, would destroy 4000 jobs in the sector and severe have economic implications, according to Chairperson of the Forum of Immigration Practitioners of SA(FIPSA) , Leon Isaacson. "Why the government would want to do this during the current economic times, is rather puzzling", said Isaacson. Immigration Practitioners also attracted investment and skills to the country and many had played leading roles in these areas.The economic losses could run into several billions of rands.

Speaking in response to the proposal on Tuesday 10 August to the Portfolio Committee on Home Affairs in the presentation by the Department at Parliament, Isaacson said that there had been no consultation at all with the industry. He said that there have been public moves by other professional groupings to have Immigration Practitioners excluded from the industry, but these moves were both anti-competitive and unconstitutional. While Home Affairs had said that they had occasional issues with people submitting applications, most of these were not registered practitioners. Registered practitioners are regulated by Home Affairs, so it is ironic that they complain about those professionals whom they basically control. "The Act provides for disciplinary measures where a practitioner violates the Code of Conduct, which Home Affairs has not pursued. This proposed amendment punishes the compliant and lets those who are not playing by the rules, get away with it."

Isaacson indicated that FIPSA would continue to engage with Home Affairs in a effort to see the industry cleaned up where this was required, and the industry may have to move towards self regulation as the Department seemed to be unable and unwilling to take on this role." The ethical practitioners conduct themselves according to strict guidelines contained in the Immigration Act well as sound business principles, and they are not the ones who should be punished."

"We are aware that Home Affairs has had problems with corruption and backlogs, which currently stand at about 5 months, but to lay the blame for this at the door of practitioners is not backed up by any proper evidence neither is it fair. There are also serious Constitutional issues to be explored when a whole industry could be wiped out by an ill advised amendment. We have written to the Minister to express our concern and have requested a meeting to discuss the matter," said Isaacson.

Crackdown on SA's work permit laws could see economy lose million

Home Affairs' proposed crackdown on foreign truck drivers crossing the country's borders without work permits which is scheduled to come into operation at midnight on June 30, 2010 will have a serious economic impact on trade within the SADC region, and is likely to cost Southern African countries several millions of rand a day, according to immigration specialist Leon Isaacson of Global Migration.

Isaacson estimates that 800 to 1500 freight trucks pass through Beitbridge, the busy border post between South Africa and Zimbabwe, alone in every 24-hour cycle. Many trucks crossing this and other South African border posts, while doing round trips from Zimbabwe, Zambia, Botswana and other African countries and back, are driven by foreign workers employed by South African companies.

Home Affairs' stricter enforcement of the law requiring that any foreigner employed by a South African firm must have a South African work permit has already resulted in some trucks being halted for periods of up to two days at several border posts within the past week, with potentially crippling financial consequences, especially for carriers of perishable foods and their clients, which include major supermarket chains, Isaacson says. Stoppages implemented on a wide scale will also affect peripheral industries, such as the fuel industry.

He explains that until now foreign drivers have been allowed to transport goods across South Africa's borders using a visitor's permit, as many drivers' routes bring them into the country only once a month. While Home Affairs is within its rights to insist that foreign truck drivers should have work permits, as stated in our immigration legislation, communication to the freight industry about the stricter enforcement of the laws has been poor and companies have not been given enough time to apply for permits.

Isaacson says many companies became aware of the tighter measures only when officials began stopping trucks and asking foreign truck drivers to produce their work permits at borders posts in February or March this year. Although the drivers, many of whom speak little English, had been verbally informed of the requirement earlier while crossing the borders, Home Affairs had not officially communicated this to employers in writing, he says.

After effective legal action was taken, more stringent enforcement was postponed until 1 July, 2010. However, as Home Affairs has not put a proper schedule in place to inform the relevant officials, it is already being enforced at some border posts, resulting in inconsistent and unpredictable processes for the industry.

Isaacson says that while many of his freight company clients applied for the required permits as soon as they became aware of the situation, they are still waiting for these to be issued as Home Affairs lacks the capacity to cope with all the applications.

By law every applicant is entitled to a decision about the issuing of a permit within a 30-day time limit Ð but on no front is Home Affairs meeting the specified time limit at present, partly because of the World Cup, he says. My company has applications that have been pending for three to six months at Home Affairs' new central hub in Pretoria, where permits are now being processed for the whole country.

He points out that Home Affairs officials at border posts can issue a visitor's permit with permission to work, enabling foreign drivers to carry out short assignments in South Africa. However, in phone calls made to various border posts within the past week, his company was informed that officials had been instructed not to issue them, as a full application is now required. This is unlawful, according to Isaacson.

Commenting on the permit law issue in an article published in the Cape Argus, on June 24, 2010, Jackie McKay, head of the Department of Home Affairs' national immigration branch, reportedly said that Òthe real issue was that most companies needed to justify why they employed foreigners. The SA companies need to tell us why they are not employing South Africans to do the work. These drivers are foreigners who work for SA companies, and any foreigner who works in SA needs a work permit.

A truck operator, who has been in the industry for many years and has asked not to be named, says about 80% or more of the truck drivers on the north/south route are Zimbabweans as there are not enough South African drivers within the industry and many locals are not willing to spend weeks on the road outside South Africa. Some of the drivers we employ spend only two or three days loading here, and then three or four weeks outside South Africa. We've had South African drivers going up to Beitbridge and leaving the trucks there because they didn't want to cross the border.

In addition there are not many South Africans who know the loading and off-loading points in Zimbabwe and Zambia, or who speak the languages of those countries and are familiar with the customs-clearing processes. It's quite an involved process, not just a matter of getting into a truck and driving it, he says.

The operator says that his drivers were informed last Saturday that they have five days in which to get permits, otherwise they will not be allowed into South Africa. He says his company has been trying to arrange for work permits to be issued for the past two months, but Home Affairs has not responded to follow-up phone calls. It's irresponsible that they don't respond. We want to get the permits, but they must allow us time to do so and then legalise the whole process, he says. We have a serious problem on our hands. They are going to destroy our whole business and close us down.

Isaacson says, The issue is the scale of the industry, the stoppages, the panic, the timing, and the fact that Home Affairs has not responded and has not come up with a workable solution which allows for proper application of the law and sufficient capacity within the Department to deal with all the applications that are going to be passed its way.

The crisis facing the industry is escalating every day, and I'm anticipating mayhem at midnight on June 30, when the border posts are going to be blocked and trucks can't move.

He adds the trucking companies that Global Migration represents have decided to take legal action against Home Affairs to resolve the current crisis, and documents are being prepared for submission to the High Court in Pretoria early on Wednesday, 30 June.

For more information, contact Leon Isaacson of Global Migration on 021 419 0934.

User-friendly laws and predictable processes needed to attract foreign skills and investment beyond 2010

By Leon Isaacson

Millions of people worldwide will watch the 2010 FIFA World Cup events and many different countries will be introduced to South Africa over this extended period, but the big question is how Home Affairs will attract foreign skills and investors beyond 2010.

The first thing that could be looked at is the introduction of user-friendly immigration legislation and a predictable permit application process, as the current legislation is a deterrent to skilled foreign workers and investors wanting to establish businesses here. The existing legislation is due to be amended to clarify certain categories of permits and to extend inter-company transfers from two to four years. This has been pending for six years.

Among the issues that need to be clarified are the quota lists, which for the past few years have not reflected the cumulative skills requirements for the country. Each year's quota list is issued without due regard to the previous year's lists. In most economies skills shortages last for less than one year, but in South Africa skills deficits are systemic in nature and should be viewed over a period of three to five years.

Another issue is that Home Affairs offices around the country currently take from three weeks to six months to process permit applications for foreign workers or investors, and vary in the requirements that they say should be met.

Most people who are going through an international investment or immigration application process want to have a predictable set of rules to follow and a predictable timeframe for the outcome to be decided. The inconsistencies between the various Home Affairs offices create despondency and frustration, and often lead to investors and skilled personnel looking to other countries for investment opportunities and jobs. This could be overcome by more training and better working conditions, including better salaries, for Home Affairs staff.

A pilot project has recently been introduced involving the centralisation of permit applications from three Home Affairs' offices in Gauteng at the Pretoria head office. While this type of processing could work, we have observed delays in the processing times of applications submitted by our Gauteng branch. The quality of the decision-making by the Pretoria Home Affairs staff has also declined noticeably since the launch of this project.

The three offices now being adjudicated at the head office are Pretoria, Germiston and Springs: busy offices that probably handle about 5 000 applications a month in total. Currently the Pretoria head office is understaffed, and this is unlikely to change rapidly as the process of staff selection and training takes longer in government than in the private sector. As a result of the centralisation process, the Pretoria head office started off with a backlog of about 8 000 applications, to which an additional 5 000 applications will be added every month. If declined applications become appeals, the appeal system will also soon be backlogged.

Although Johannesburg is the next busiest office, Cape Town has been targeted as the next to be centralised in Pretoria. The Cape Town office handles between 6 000 and 6 500 applications a month, so this number will be added monthly to the understaffed hub and backlog in Pretoria. Already most staff members at the Cape Town branch are putting in several hours of overtime daily to deal with a backlog of some 5 000 applications.

My company has applications that have been held in Pretoria for the past five months, although the existing laws state that Home Affairs must make a decision on every permit application within 30 days. In other cases, we have not even had an acknowledgement of receipt for applications submitted to Pretoria six weeks ago.

We believe that Home Affairs should be held accountable: if the department says it is going to take 30 days to issue a permit, then at the end of 30 days there should be a predictable outcome. In dealing with the British High Commission, for example, when handling matters such as South African investment into the UK, my company knows it will take five to 10 working days, like clockwork, for a permit to be issued.

The Forum of Immigration Practitioners, of which Global Migration is a member, recently started lobbying the Portfolio Committee to address immigration issues of this kind, and did a presentation to the committee in mid-March. This was not to attack Home Affairs: we believe the committee needs our perspective as it does not get reports of service on the ground, and we will continue to build that relationship.

If the pilot project is extended further, it can be expected that processing times will increase and that decision-making will continue to be poor. We suggest that the results of the current pilot should be carefully examined before any further centralisation takes place.

* Leon Isaacson is the MD of Global Migration, a national immigration company, which advises corporates and individual clients about immigration options and opportunities in South Africa. Phone 021 4190934 or visit www.globalimsa.com.

Facing new challenges in the immigration arena

An urgent matter that the new Minister of Home Affairs, Dr Nkosazana Dlamini-Zuma, will have to address is the release of a new quota list specifying the skills categories and number of positions that may be filled by foreigners, says Leon Isaacson, MD of specialist immigration company Global Migration SA.

Visa applications for foreigners who have needed skills are being delayed because the new list, which was due in February, has not been released. “The quota lists are effective for a 12 month period,” Isaacson explains. “Our view is that the current list should prevail, but some Home Affairs officials are delaying applications because the old list has passed its expiry date and the new one is not yet available. This legislation needs to be signed and put into effect urgently, but there may be a further delay because the new minister has just stepped into office.”

Isaacson says the minister will have significant challenges to deal with in the immigration arena, as the turnaround team at Home Affairs has largely focused on civic and refugee affairs over the past 18 months. “While some Home Affairs offices, such as the Cape Town branch, are working well in respect of immigration matters, others around the country are not functioning optimally, with poor decision-making and service creating problems for individuals applying for permits. This will have to be addressed.”

Discussing the immigration outlook over the coming months, Isaacson says it is anticipated that the new government’s economic planning ministries will introduce a different approach to immigration, possibly in 2010. “There is talk of increasing protectionism for current businesses or industries that are suffering because of the global economic downturn, such as the textile industry,” he says. “We hope this will not lead to the closing down of opportunities for foreigners to work in South Africa or for companies to bring in skilled staff because they are always required, regardless of the economic circumstances.”

Isaacson suggests that the immigration system should be used as an instrument to promote economic growth by encouraging foreigners to invest and work in South Africa, rather than as something against which the country needs to be defended. “For example, one of our clients, an EU investor, recently created 200 jobs by establishing an eco-lodge development in the Eastern Cape, where employment is rarely created in the private sector.”

A significant challenge facing the minister will be the implementation of recent legislative changes that allow Zimbabweans to enter South Africa on a 90-day visitor’s permit, which is issued free at the border, or on a six-month concessionary work permit, he says. “The latter will enable Zimbabweans to do casual work in South Africa, but has not yet been put into effect. South Africa does not have a permit of this kind at present, and we are waiting for the relevant legislation and regulations.”

Isaacson explains that the rational for issuing these permits is to regulate the South African market. A cause for concern is that if the migration process is not managed correctly there could be a risk of more xenophobic outbreaks, as the issue of protecting work opportunities for local people is a fraught one, and the country’s resources will be under additional pressure.

He urges sympathy from the South African population for the plight of Zimbabweans, and believes that there should be high-level, large-scale government involvement to make sure immigrants will not be forced into squalid circumstances in South Africa where they will become vulnerable.

Isaacson says the main criterion for the international community, with South Africa as a key role player, is to make sure that the Zimbabwean economy is supported so that it can get back to normal as soon as possible, enabling those who wish to be repatriated to return home. “But this might take a long time. While the politics in Zimbabwe appear to be coming slowly back together, there are still no employment opportunities, and food staples are expensive and in short supply in an economy that has deteriorated to virtually zero.”

He says that with numbers being bandied about of between 500 000 and two million people crossing the border into South Africa, the scale of repatriation would be regarded as a major humanitarian crisis for any country anywhere in the world. “However, our government’s policy has always been one of quiet diplomacy.”

A control mechanism to be put into place is that Home Affairs officials will carry out an assessment at the end of the six-month concessionary period, based not on the individual’s circumstances, but on the situation in Zimbabwe to decide whether the permit holder should return home, says Isaacson. “This is likely to create unhappiness among Zimbabweans who are forced to go back although there might appear to be little appreciable change.”

As there has been no announcement of increased capacity or additional offices to handle the new permits, the backlog at permanent Home Affairs offices, which are already under huge pressure, will increase, he says.

Another change to the immigration landscape is that all South Africans travelling to the UK from July will require visitor permits or visas, which they must apply for in their home country. “The authenticity of a large percentage of SA passports was being questioned because of abuses by a few people. Our government has therefore accelerated the implementation of tamper-proof South African passports containing a microchip, and applications are currently being processed in two to four weeks.”

Business people who do not have the time to queue at the British High Commission’s visa office may request a Saturday appointment. Frequent travellers may also apply for longer-term visas, which will initially be granted for two to three years.

In the current economy, South Africans will find it harder to get jobs in the UK, unless they are in selected industries, as the UK government wants to ensure that British and EU passport holders and nationals will be given preference. “Employers now have to comply with a set of legal obligations, effectively abolishing casual work.”

In terms of the global picture, Isaacson says many countries that want skilled immigrants don’t have opportunities for now. “But that will probably change within a year or two because economies will pick up, new opportunities will arise, and skilled people will be in demand again.”

Phone Global Migration on 021 4190934 or visit www.globalimsa.com

Inadequate provision for skills requirements on new quota list

Leon Isaacson

The latest quota list, due out in February, was released by the Department of Home Affairs on May 25. The list specifies the skills categories and number of positions that may be filled by foreigners.

A change worth noting is that Home Affairs has tightened up on the requirement that all professionals must be registered with a relevant association in South Africa before they may apply for a quota work permit. A registration body has been specified for each of the 90 professional categories included on the new list.

A gap that needs to be closed is that South Africa does not have a scientific labour survey to determine the country’s real requirements for professional and qualified people on an employment category and geographic basis. At present, the quota list is a “best guess” estimate.

During a recent presentation to the HR managers of a large South African university, I asked whether government had ever approached the university – a seat of the country’s creative intellectual capital - to establish where its skills shortages lay. They said they had never had any interaction with government on this issue, and that all efforts to recruit the correct staff for senior academic positions were carried out by the university staff, based on their own determinations of what they needed. They added that there was a drastic shortage of skills across the board in respect of their own requirements, as South Africa is not producing enough skilled people internally.

While there may be a sense that there is a dampening down of skills requirements in the country because of the current economic climate, backed by the fairly low numbers in each category on the quota list, positions requiring highly skilled people will not be frozen. And South Africa will encounter problems when there is an upturn in the economy as the numbers of skilled workers allocated to each job category on the quota list is inadequate.

The total allocation for electricians, for example, is 150 for the whole country. In the Information and Communication Technology sector, the only job categories included are network and support professionals, with an allocation of just 500 throughout South Africa. This greatly underestimates the scale of opportunities in the economy.

Managing the application process for all types of visas will be high on the agenda of the new Minister of Home Affairs, Nkosazana Dlamini-Zuma, as the FIFA 2010 World Cup brings South Africa into the international spotlight. With hordes of fans expected from many different countries, the process will have to be managed correctly, carefully and without corruption.

A turnaround team appointed by government began working with the “immigration stream” in the last quarter of last year. We have noticed determined efforts to get the right staffing levels in the right offices, and attempts to support the staff in terms of skills training.

A challenge will be to upgrade the service provided to the public at counter level. We have found inconsistencies between various Home Affairs offices throughout South Africa, with some officials not following the process set out in the Immigration Act. Effectively the official’s role is to take in an application, assess it in terms of the law and the legal procedures, and then give a decision on whether or not the permit has been granted. When giving an adverse decision, they must provide a reason, and the applicant may lodge an appeal. Following the correct process does not necessarily mean the applicant is entitled to a work permit, but it does mean that he is entitled to fair treatment.

As our economy has been well-managed and South Africa is viewed as a good place to retire, invest and study, we need a well-structured, smoothly operating infrastructure to manage this process. This is among the challenges the new Minister faces in terms of the turnaround programme during the next couple of years. It remains to be seen how the department will be handled, improved or managed under her watch.

Quota List May 2009

* Leon Isaacson is the MD of Global Migration, a national immigration company, which advises corporates and individual clients about immigration options and opportunities in South Africa. Phone 021 4190934 or visit www.globalimsa.com.

Misinformation can hinder companies from filling scarce skills gaps

Being misinformed about the procedures relating to work permit applications can result in valuable opportunities being lost both to companies struggling to fill scarce skills shortages and to foreign workers who want to settle in South Africa, as a recent case handled by my company, Global Migration SA, demonstrates.

Following XYZ Steel Manufacturing’s extensive search for a production engineer to do some project work at the Cape Town factory, John Schmidt*, the procurement manager, thought he had found a possible solution when Joe Moyo’s* CV and proposal landed on his desk.

In response to advertisements that had been run in the local newspapers and on the company’s website, Moyo, a Zimbabwean national who had just finished his Masters degree in production planning, had applied for the position. He had also submitted an alternative proposal to provide an outsourced production planning service through a business that he was considering setting up.

When Schmidt discussed Moyo’s application with Jenny Fortuin*, the company’s HR Manager, however, she was sceptical about employing a foreigner. She had recently tried to help another foreigner to obtain the necessary work permits, and had given up because of conflicting information received from the Department of Home Affairs and inordinate delays after the application had been lodged.

Moyo stated on his CV that he had come to South Africa on a study permit four years earlier to do his M.Sc at the University of Cape Town, and had subsequently obtained his degree with distinction. He had gained six years of work experience since graduating with a B.Sc and registering as an engineer, and therefore also had practical experience to bring to the position.

On phoning Home Affairs to enquire about applying for a work or business permit, he was told that he would have to return to his own country once his study permit had expired and apply for a South African work permit from there. Unhappy at the prospect of leaving his wife - a South African national whom he had met and married while studying in this country - and going back to Zimbabwe, he sought advice on the matter. After assessment and research, Global Migration advised him that:

* The correct position is that a foreigner is allowed to apply for any other permit while in South Africa on a valid permit.
* According to South African law and some decided cases that have set legal precedents, the fact that Moyo has a South African life partner confers the right and responsibility on him to support his family, and to be permitted the right to work and conduct business to fulfill these obligations. The courts have held that the rights and responsibilities of a person in such a situation must be recognised and, provided that the person submits a complete application for an appropriate permit, he must be permitted to work or conduct business in South Africa, after a 30-day decision-making period by Home Affairs.

Home Affairs’ documentary requirements were reduced in Moyo’s case. XYZ Steel Manufacturing was advised that it would not have to advertise the position again, but would be required to make a formal written offer of employment to Moyo. As an engineer, Moyo would also have to register with the Engineering Council when required to do so.

When XYZ Steel Manufacturing was informed of Home Affairs’ requirements and realised that the process of employing Moyo would be easier than had been anticipated, the company decided to offer him the position as a Production Planning Manager, on condition that he could produce the correct work permit on commencing work at the company.

*Names have been changed to protect identities.

* Leon Isaacson is the MD of Global Migration, a national immigration company that advises corporate and individual clients about immigration options and opportunities in South Africa. Phone 021 419 0934 or visit www.globalimsa.com

World Economic situation makes South Africa Attractive to Skilled Foreigners

Until the middle of 2008 there was nothing untoward in the forecasts for the world economy except that crude oil prices seemed to be on an upward spiral at USD 140 (now USD 40), commodity prices were high and there were murmurs of possible problems in the US housing market. Employment opportunities seemed to be abundant with demand in many sectors outstripping supply by far. South Africa had a number of programs in place to attract skilled foreigners to work here as our growth rates, emigration and a poor education and training system combined to create a situation in which the skills required for growth were not available. This stretched across all economic sectors.

After the credit crisis last year, governments around the world had to intervene and guarantee USD 2 trillion (this may rise to USD3 trillion), but in the process many shaky companies and industries have been exposed or left with inventory which cannot be sold, and declining businesses (eg the motor industry).This has led to massive restructuring and retrenchments.

In general terms skilled workers are the most mobile in the workforce and will probably find work in their own countries or in other countries, provided there are opportunities available in these countries. A current example is that while the UK and US are experiencing retrenchments in
construction sectors, Canada, Australia, China and South Africa are experiencing shortages so there is a very real opportunity for people with the right skills to obtain work contracts in these countries.

For South Africa, there is a unique opportunity to recruit skills which we know have not been trained locally and are required for the next few years in our country in order to build a number of industries such as IT, construction, engineering, education and other with the skills critical to these sectors. While South Africa may not have been the first choice for foreigners to come and work because of the poor exchange rate and other negative perceptions of the country, the country should be sold on the basis of lifestyle, relatively cheap cost of living compared to other countries and our first world standing in many industries.

It will take a concerted and sustained effort by Government and the private sector to ensure that we take this unique window opportunity to promote and develop our country.

More skilled workers are moving across borders : Published in the Argus
Jobshop 15 October -  written by Impti du Toit

Human resources professionals, recruiters and managers are finding it increasingly difficult to source the necessary talent within South Africa to grow their businesses and remain competitive.

This is likely to remain an issue for the next 15 to 25 years as education systems adapt to produce more appropriately prepared and skilled individuals, according to Leon Isaacson, managing director of Global Migration SA.

"In the global marketplace, there is a growing trend for workers who have skills that are in demand to move between companies both within and across national borders," Isaacson says.

"This brings its own challenges to employers, who have to cope with increased risk, and more complex legal and procedural matters."

As skilled foreigners are likely to play a significant role in our economy until balance is restored within the education and training systems in South Africa, Global Migration has arranged a seminar at which several important expatriate management issues will be addressed, to help HR departments and managers get to grips with the complexities.

The seminar, which will be presented in Cape Town, Johannesburg and Durban later this month, will include talks by Isaacson, an immigration practitioner who advises businesses and individual clients about immigration options and opportunities in South Africa; Dr Marius van Aswegen, a registered industrial psychologist specialising in the field of expatriate emotional health and management; Jerry Botha, the leading partner in a tax consultancy that focuses on expatriate planning and compliance; and Dr
Laurentia Truter, an advocate whose field of expertise is employment law, labour relations and employment equity.

Van Aswegen points out that in selecting and managing foreign workers most companies focus on a single criterion: that of technical competence and performance.

However, expatriate failure is seldom the consequence of a lack of technical skills, but rather of the foreigner's ability to cope with an unpredictable new working and social environment.

"Organisations therefore need to place much more emphasis on the management of the individual's emotional well-being and health in adjusting to the foreign environment and country," he explains.

Statistics show that 16% to 45% of all expatriates "fail" - which means they return home before completing their contract - and that there is a significant drop in professional performance among 50% of those who remain in the foreign environment because of high levels of stress, he says.

He points out that expatriates face many challenges in adapting to a foreign environment. How successful the individual is at settling in depends on a number of factors, including his ability and willingness, and that of his spouse and family, to adjust to a different country, cultures and languages; how the family copes with being away from their social support structure and whether the foreign worker is able to deal with the added responsibilities often demanded of him when working abroad. Foreigners typically go through a cycle of phases in adjusting to a different environment, Van Aswegen says. The first of these is the honeymoon phase in which the new life is seen as
exciting and stimulating.

In the second phase the person experiences culture shock and feels disorientated, showing signs of depression or stress.

In the third or recovery phase, he begins to reach a mental compromise between his exaggerated initial expectations and reality; and in the adjustment phase, he begins to work effectively and experiences personal growth.

At the seminar Van Aswegen will discuss the typical problems facing expatriates and outline the support services that can put into place to help them adjust to an emotionally challenging external environment, to enable them to perform at a high level and achieve personal success in their new
surroundings.

Isaacson will address the issue of skills shortage work permits and HR skills strategies. In South Africa there are various types of work permits: quota, general, exceptional skills, intra-company, exchange and business permits. There is also a retired person's work permit, and certain visitors'
permits allow foreigners to work in the country for a short while.

Isaacson says that in South Africa only registered immigration practitioners, attorneys or advocates who meet the government criteria and code of conduct may legally represent a foreigner in applying for permits at Home Affairs.

But many fly-by-night operators provide illegal permits at prices - often as high as R20 000 to R30 000 per permit. It is important to "ask for references from current clients and check the practitioner's registration certificate".

Tax expert Jerry Botha will talk about some of the latest amendments to South African laws, such as the new expatriate accommodation rule which became effective in March 2008, and will also speak on compensation and benefits strategies for expatriates, among others.

Dr Truter will discuss issues, ranging from the statutory conditions of employment that govern expatriate contracts of employment, and the documentation required for inter-company transfers, to whether an employee can be dismissed if it transpires that he does not have a valid work permit.

The one-day seminar on South African work permits, tax, expatriate management and labour issues will be held at The Fountains Hotel, Adderley Street, Cape Town on October 28, at R950 plus VAT.
* Contact Global Migration on 0861 644 728, or register online atwww.globalimsa.com.

Foreign workers may hold dual citizenship in South Africa

Foreigners who live and work in South Africa may be concerned that they will have to renounce citizenship of other countries if they wish to apply for South African citizenship. 

South Africa permits dual citizenship, which allows easier access into other countries for those who want to conduct business or work freely in several parts of the globe.  However, it is important for travellers who have dual citizenship to be aware that they must always use their South African
passport when entering or leaving South Africa. Other passports may be used for travel outside of the country.

Immigrants are often confused about the difference between citizenship and permanent residence. Citizenship gives an individual the right to participate in the political activities of that country, to vote and to receive state protection if required. It also entitles that person to receive state benefits such as housing, medical aid and pension, provided they are eligible for such benefits. Permanent residence limits the person's rights to working, studying or travelling in South Africa, as defined by the type of permit granted to them.

Permanent residence holders may apply for citizenship after living in South Africa for at least five years. The five-year period need not be continuous, but the person must have lived in South Africa during the year preceding application. The remaining four years must fall within an eight-year period
before the date of application.

A person may become a South African citizen by birth, descent or naturalisation. Citizenship by birth or descent is the legal right of anyone who can prove their place of birth and parentage. The South African Citizenship Act of 1995 states that any child born in South Africa after 1995 is a South African citizen if one of its parents is a South African citizen or permanent resident.

Children born to foreigners living in South Africa are also legally recognised as South African citizens in cases where they are not eligible for citizenship of any other country.  This can occur when both parents are citizens of countries whose laws prevent children born outside of the country from being able to claim citizenship.

South African law allows children born outside the Republic to claim citizenship through descent. For a child to be eligible, one of its parents must be a South African citizen, and that parent must register the child's birth at the nearest South African embassy or consulate, or Home Affairs office.

Children who are adopted by South Africans can also claim citizenship by birth or descent, provided the adoption is a legal one agreed to by a court. The rules relating to their citizenship are the same as those for children born to natural parents.

If a citizen of another country wishes to have South African citizenship, he may apply to the Minister of Home Affairs. Certain conditions must be fulfilled: the person must be over the age of 21; must have a permanent residence permit to live in South Africa; must have lived in South Africa for at least five years before applying for citizenship; must be able to communicate in one of the country's official languages; and must be of good character.

The Minister may refuse an application even if the applicant seems to fulfill all these conditions, as citizenship by naturalisation is considered a privilege and not a legal right.

South African citizenship can be taken away from an individual who has citizenship of another country. This could happen if that person renounces his South African citizenship voluntarily; votes in another country's elections or uses a passport issued in another country without the South African Ministry of Home Affairs' permission. An individual who serves in the armed forces of any country while it is at war with South Africa will also lose his South African citizenship.

* Leon Isaacson is the MD of Global Migration, a national immigration company that advises companies and individual clients about immigration options and opportunities in South Africa. For more information contact  021 4190934 or visit www.globalimsa.com.

MINIMISE THE RISK WHEN YOU HIRE FROM THE INTERNATIONAL COMMUNITY.

LEON ISAACSON

HR professionals, recruiters and managers are hard pressed to find the necessary talent in the South African environment to grow their businesses and remain competitive.

As talent mobility increases, in-demand workers are more and more moving between companies both within national borders as well as across them. This brings with it its own challenges as employers are having to cope with increased risk and legal matters. There are a few key points that will help them minimize their risk when employing internationally mobile employees.

SEARCHING FOR SKILLS
South Africa is not unique in the world in experiencing this problem, but it is likely to be an issue for the next 15 - 25 years as education systems adapt to producing more appropriately prepared and skilled individuals for the general economy. Skilled foreigners are likely to play a significant role in our economy until balance is restored within the education and training systems in South Africa.

IMMIGRATION PRACTITIONERS
In South Africa, only a registered immigration practitioner, attorney or advocate who meets government criteria may legally represent a foreigner in applying for permits at Home Affairs, and they are bound by its code of conduct. But many fly-by-night operators provide permits illegally, at exorbitant prices, leaving unsuspecting people open to legal sanctions if caught with such documents. These operators often prey on foreign communities that do not understand our languages well.

Before engaging a practitioner, it is important to establish their credibility. Ask for references from current clients and check the practitioner’s registration certificate. Many people who call themselves immigration practitioners are agents or third parties who act as intermediaries, approaching registered practitioners on behalf of applicants and adding a substantial mark-up to the practitioners’ fees. To prevent “double handling,” as this is called, refuse to deal with any agent if you can’t speak directly to the immigration practitioner or the principal of the Immigration business.

In South Africa there are various types of work permits: quota, general, exceptional skills, intra-company, exchange and business permits. There is also a retired person’s work permit, and certain visitors’ permits allow foreigners to work here for a short while. Getting the right permit requires thinking and planning, and a professional immigration practitioner can give the company or foreign worker a proper assessment, based on the current and long-term plans for the company, the staff member and their family members. The quota work permit is available to foreigners whose skills fall into specific categories where there are shortages in South Africa. These skills categories are determined by the Minister of Home Affairs, who decides annually on the number of permits to be issued for each skills category, to satisfy the needs of our economy. Normally only around 15 to 20% of the quotas are filled, as Home Affairs does not actively market and recruit abroad, and it is difficult for skilled foreigners based overseas to handle the application process on their own.

PERMANENT RESIDENCE
South Africa, like most countries, allows non-nationals to change from temporary status to permanent residence, provided they meet government criteria. Permanent residence gives foreigners the freedom to live and work in a country without restriction on study, business activities and so on – in essence, enabling them to engage in any activity for which they would normally require a permit.

Under South African law, a foreigner may apply for indirect permanent residence if he has been granted a work permit of a type that allows this and has worked in the country for a minimum of five years for example, a general work permit.

Direct residence candidates, who do not have to wait five years are those who have been granted an exceptional skills work permit or a business permit, are relatives of citizens or permanent residents, are financially independent or have been granted a retirement permit.

EASY/FAKE PERMITS
Another growing problem is the number of fly-by-night operators who promise to obtain permits for foreign workers quickly and easily.

Anyone promising a quick, easy solution is probably offering an illegal service, as the timing and application processes have been laid down by law.

It is estimated that between 50 and 60% of permits in the Gauteng region are illegal. Foreign language speakers, in particular, who do not understand the application process, may contact someone they believe to be a lawyer, but who is in fact neither a lawyer nor a registered practitioner. We’ve had cases of people, for example, being issued with work permits that have not only turned out to be fakes, but for which they have been grossly overcharged, paying
R20 000 or R30 000 per permit.

While these permits may bear what appears to be a Home Affairs stamp and may be signed by an “official”, they are illegal, and legal action can be taken against the practitioner and Home Affairs employee found to be providing such permits, the permit holder and an employer who employs such a person.

With applications for inbound permits set to keep increasing because of South Africa’s inability to keep up with the demand for internally trained professionals, potential employers of foreign workers are advised to carry out some basic checks before choosing an immigration practitioner. To be in this business, you have to be registered with Home Affairs, so potential employers should first check on this, and also the immigration practitioner’s company registration and VAT numbers. In addition, they should look into the immigration company’s history and track record, and ask for and follow up on trade references to ensure that they are dealing with a reputable business.

In terms of processing time, Home Affairs has 30 calendar days to process an application. If it intends rejecting the permit application, it must give written notice to the applicant, and must provide a legal reason for the rejection. The applicant or practitioner then has 10 working days in which to answer officials’ queries or lodge an appeal.

There are no shortcuts to this process. Foreigners applying for a change of permit or extension should do so well before their current permit expires to remain in South Africa legally, and a minimum of 30 calendar days before expiry.If the current permit expires thye applicants may not travel and reenter the country until the application is finalized. The exception would be where the applicant holds more than one passport. No Home Affairs official may ask for any money other than the application fee, and any permit obtained through favouritism, gifts or money is illegal.

Agents, or even registered practitioners who are not experienced in the type of application being handled, often obtain the wrong work permit with serious implications, as some have limitations regarding renewal or application for permanent residence.

ASYLUM SEEKERS AND REFUGEES
In a judgment delivered in April 2008, in the matter of Dabone and Others versus the Minister of Home Affairs and Another, the Cape High Court ruled that foreigners registered as asylum seekers or refugees may apply for temporary residence permits - including work permits - while in South Africa. Previously they were required to return to their country of origin before applying, and could not do so without giving up their refugee status.

In terms of the Dabone judgment, it is critical for HR managers and other staff recruiters to know that Home Affairs cannot refuse to issue work permits to individuals who have been granted asylum seeker or refugee status in South Africa, and that these individuals no longer have to leave the country before applying for work or other permits. There are many skilled people in this category who would be an asset to their company.

TRAIN YOUR STAFF
In order to ensure that the complexities of employing talent from outside the borders of South Africa is expedited in a legally and procedurally correct manner, companies are advised to ensure that their HR staff are well trained in managing these matters.

Leon Isaacson is the Managing Director of Global Migration SA (www.globalimsa.com).

Class action to be filed against Home Affairs on permanent residence issue

A class action lawsuit, spearheaded by immigration specialists Global Migration SA, is to be brought against the Department of Home Affairs in a bid to shorten the unacceptably long waiting period that qualified candidates face when applying for permanent residence in South Africa.

Leon Isaacson, MD of Global Migration SA, says that while the process of applying for permanent residence used to take between 30 and 90 days, his company’s records now show that several applications submitted between six and 39 months ago have not yet been finalised.

Global Migration noticed that the flow of finalised applications had been slow recently, as it usually follows up on such applications with Home Affairs every two to four weeks.  “As there was no question of the relevant candidates not being entitled to apply, I e-mailed the Director-General at Home Affairs in Pretoria to query the long delay, which is both unacceptable and unlawful,” Isaacson says.

When Home Affairs replied that it was urgently working on the problem - a standard answer that Global Migration had heard for many months with no great signs of progress - Isaacson asked other local immigration practitioners through an informal forum operating in the Western Cape, where his company’s head office is based, to indicate how many of their permanent residence applicants were in a similar situation.

The total number was about 500 in the Western Cape region alone. “Word on the street is that the backlog nationally could be as large as 20 000 to 30 000 applications, that Home Affairs does not have the staff to deal with these applications and that permanent residence applications are not currently taking priority because of other urgent issues,” says Isaacson.

Immigrants are entitled to apply for permanent residence once they have completed the requisite five years of work in South Africa, or when issued with business , exceptional skills or retirement permits which allow them to apply immediately for direct residence.  Unwarranted delays in granting skilled people permanent residence status can have serious consequences not only for the individuals involved, but also for the South African business community and the country, he says.

Isaacson points out that people at all levels, from skilled, mid-level workers through to the CEOs of big companies, are being affected. “For example, a top-level scientist currently employed by one of our clients, a major engineering and petrol company, is threatening to leave the company and the country if his permanent residence status is not sorted out. His perception is that his skills are not wanted here because of the length of time his application is taking to process.”

He says foreigners offered long-term employment often want to stay in the country to continue their work and contribute towards the South African economy, but the bureaucracy does not facilitate matters in this regard.  “As a result, applicants suffer a high level of inconvenience and prejudice in their everyday lives when there is a delay in changing their status from temporary to permanent residents, not to mention the insecurity of going through an unreliable process.”

Delays can impact on foreign workers’ tax status, both in South Africa and their home countries, as well as on their banking and other financial arrangements, he says.  For example, they have to pay foreign student fees for their children studying in South Africa because they are not registered as permanent residents. They also face problems when their driver’s licences expire, as the traffic department wants to see proof of permanent residence before it will convert a driver’s license issued elsewhere.

In addition there are high costs involved. “If an applicant’s temporary residence permit expires before a permanent one is issued, that person has to apply for further temporary permits for his whole family to remain legally in South Africa, while waiting for the permanent residence application to be attended to,” Isaacson says. “This is time-consuming and expensive, and sometimes disrupts employment, business trips and projects.”

After several unsuccessful meetings with Home Affairs in the past to try and speed up permanent residence applications, Global Migration has decided, at the request of its clients, to seek the intervention of the courts in a class action to try and resolve this issue.

Two notable actions taken against Home Affairs in the past were resolved in favour of the public: one forcing the refugee department to register refugees who had been in queues for months, and another revolving around a decision about foreign life partners.

Isaacson believes there is neither room for excuses like a lack of capacity, understaffing, lost files and lost documents, nor time for meeting upon meeting with Home Affairs where no solutions are reached on the issue of permanent residence. 

Global Migration has therefore engaged senior legal advisors who will file an application for an urgent court hearing. “If the case goes onto the routine court rolls it may be 12 months before a court date can be obtained, so any sense of urgency will fall away, and permanent residence applicants will in the meantime continue to be subjected to an unacceptable situation caused by the administration of a public entity,” he says.

Immigration practitioners, employers or individual applicants around the country who would like to join in the class action lawsuit, which will focus specifically on the issue of permanent residence, should urgently phone Leon Isaacson on 021 4190934 or e-mail leon@globalimsa.com. The class action will be filed within the next two or three weeks.

Are you eligible for permanent residence in South Africa?
South Africa, like most countries, allows non-nationals to change from temporary status to permanent residence, provided they meet government criteria.  Permanent residence gives foreigners the freedom to live and work in a country without restriction on study, business activities and so on – in essence, enabling them to engage in any activity for which they would normally require a permit.

Under South African law, a foreigner may apply for direct permanent residence if he has been granted a work permit of a type that allows this: for example, an exceptional skills work permit. Other direct residence candidates may are those who have been granted a business permit, relatives of citizens or permanent residents, those who are financially independent and those granted retirement permits.

Under 21-year-old children of permanent residents or citizens are automatically granted resident status, but must confirm their acceptance of this status within two years of their 21st birthday.
Permanent residence may also be granted on “other grounds”, as defined by Home Affairs. For example, any foreigner who has received an offer of permanent employment is eligible to apply – but his employer must show by means of an organogram that the position exists; and must prove that an advertisement was placed and responses screened, and that no suitably qualified citizen or permanent residence holder was available to fill the position. This documentary proof must be submitted with the application form, and the foreign worker must have five years’ continuous employment with that employer to qualify for permanent resident status.

A non-national who has been granted a quota work permit because he has skills required in South Africa, as identified in the Minister of Home Affairs’ published annual skills quota lists, may also apply for permanent residence; as may those granted a work permit because they have extraordinary skills or qualifications.

Anyone who has established a business and invested a minimum of R2,5-million may also apply. The minimum investment amount may be waived in certain circumstances: for example, to promote investment in key sectors such as Information and Communication Technology; clothing and textile manufacturing, chemicals and biotechnology; agro-processing; metals and mineral refinement; automotive manufacturing; tourism and crafts.

Any person who has a minimum net worth of R7,5-million is eligible as well; as are people who intend to retire in South Africa and have a minimum monthly income of R20 000 each, payable through a pension or annuity plan.

A citizen’s immediate family members - including brothers, sisters, parents or children – may also apply for permanent residence. The spouse of a citizen or permanent resident may apply for permanent residence after five years of marriage. The Department of Home Affairs would require statements from two witnesses that the spousal relationship is a “good faith” one, and has not been arranged to acquire permanent residence falsely.

In addition, refugees who have been resident in South Africa for five years are eligible for permanent residence. The United Nations protects refugees from being deported to a country where their lives will be in danger.

Non-nationals cannot qualify for permanent residence in certain circumstances – for example, if the person does not comply with the health requirements prescribed in the application. Applicants will need to submit a medical and radiological report, and should be free of infectious diseases.
An applicant will also be denied permanent  residence if he has a warrant of arrest outstanding for certain offences; has been convicted for a serious offence; or has been deported from South Africa and not rehabilitated because of problems relating to his deportation, such as fines that remain unpaid.

In addition, any member of an organisation that practices or promotes racial hatred, crime or terrorism may not apply for permanent residence, nor may any person found to be in possession of a fraudulent residence permit, passport or identity document.
After five years of living in South Africa, a permanent resident may apply for citizenship. This will allow him to vote and exercise all rights normally associated with citizenship of a country.

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Having the correct work permit is critical

The consequences of having the incorrect work permit can be serious: a foreigner may lose a job when a permit has to be redone; be unable to open a banking account or obtain finance for vehicles or housing in South Africa because his permit is for a short period only; or be restricted in applying for permanent residence.

In South Africa there are various types of work permits: quota, general, exceptional skills, intra-company, exchange and business permits. There is also a retired person’s work permit, and certain visitors’ permits allow foreigners to work here for a short while.  Getting the right permit requires thinking and planning, and a professional immigration practitioner can give the foreign worker a proper assessment, based on his current and long-term plans for himself and his family.
The quota work permit is available to foreigners whose skills fall into specific categories where there are shortages in South Africa. These skills categories are determined by the Minister of Home Affairs, who decides annually on the number of permits to be issued for each category, to satisfy the needs of our economy. Normally only around 15 to 20% of the quotas are filled as Home Affairs does not actively market and recruit abroad, and it is difficult for skilled foreigners based overseas to handle the application process on their own.

The distinguishing factor of the general work permit is that the person must have a job offer in South Africa, and the prospective employer – any company from any industry sector - must show that they have been unable to recruit a South African with the necessary skills, despite advertising nationally. This type of permit may also be granted to a foreigner with rare skills not included on the quota list.
An exceptional skills permit is usually granted to a person who has excelled in his field, such as an academic who has published, or someone who has impacted on his industry at a high level in his own country, like a top sports coach. Home Affairs would require documentary proof to validate that person’s achievements.

Intra-company permits are typically used by multinationals to bring in key management staff, and are currently issued for two years. If the foreigner becomes an integral part of the local operation, the intra-company permit can be changed to another permit before expiry. Once an intra-company permit expires, the foreigner must leave the country. This permit also does not lead to permanent residence, which could impact on companies wanting to retain the services of key individuals.

A corporate permit is for companies that know in advance they will need large numbers of foreign workers with particular skills not available in South Africa. We normally recommend this to clients needing more than 20 people for particular projects. Granting of an application for the required number amounts to pre-approval from the Departments of Trade and Industry, Labour and Home Affairs. Once individual workers have been identified and recruited, Home Affairs issues an authorisation certificate enabling foreigners to come in and start work more quickly, although the normal documentation must still submitted.

An exchange permit may be issued to under-25-year-olds involved in exchange programmes initiated by government departments or higher education institutions – for example, a foreign government may send young engineers here to train with a South African government department. Exchange permits are valid for one year. When the permit expires, the person must leave the country and may only apply for another temporary residence permit  two years later.

Certain visitors’ permits allow applicants to work here for six months, with the permission of Home Affairs. Overseas manufacturing companies may, for example, send in staff to do specialised installations of equipment, which can’t be done locally. Home Affairs may also permit students to do 20 or more hours’ part-time work per week as practical training relating to their studies.

A retired person’s permit may be changed to allow a retired person to work  for any number of reasons  including where skills are in short supply, but applications must be motivated to Home Affairs.

If a foreigner invests in South Africa and is granted a business permit, he is permitted to work in and operate that business without special permission. Having a business permit or exceptional skills permit allows foreigners to apply immediately for permanent residence, without the usual waiting period of five years required of those holding general, quota or other permits.

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Fly-by-night operators cash in on demand for foreign skills

Home Affairs estimates that there are currently 35 000 positions in South Africa that cannot be filled from within because of skills shortages, primarily in technical fields. But Leon Isaacson of Global Migration says the numbers of skilled workers needed to meet the demands created by the country’s excellent economic growth are actually far higher, according to two research initiatives driven by the Presidency.

Isaacson says the Accelerated Skills and Growth Strategy for South Africa and the Joint Skills Training for South Africa research programmes carried out by the Presidency’s appointed researchers indicate figures that are sometimes five or 10 times higher than those estimated by Home Affairs, and include skills shortages in several professional categories not mentioned in the Home Affairs skills quota list.

While objections are often raised about foreigners “taking over” positions that could be occupied by locals, he says that most companies using Global Migration’s services to obtain permits for foreign labour advertise nationally but do not get  the right candidates with the right qualifications. “It’s been scientifically tested: there is a discrepancy between the skills available in this country and those that are actually required. Although every socially responsible company in South Africa obviously wants to reduce unemployment, the logical thing is to import needed skills if South Africa can’t produce these quickly enough through internal training.”

But, judging by the experience of many local companies, this is often easier said than done. Businesses seeking to import the skills critically needed to carry out the huge infrastructure projects relating to power generation, the 2010 FIFA World Cup and other major developments that will affect the country’s continued growth, or wishing to facilitate the entry of skilled workers being drawn into South Africa as a result of the high growth rates, demand for IT skills, engineering skills and the upsurge in the mining sector  caused by the Chinese/Indian commodities boom, are encountering challenges in obtaining authorisation to employ foreign workers, Isaacson says.

These challenges include serious backlogs at some Home Affairs offices, time delays in requesting documentation such as waivers, which have to be authorised by the Home Affairs head office in Pretoria, and requests for incorrect documentation by Home Affairs staff, which can delay business projects.

Another growing problem is the number of fly-by-night operators who promise to obtain permits for foreign workers quickly and easily. “Anyone promising a quick, easy solution is probably offering an illegal service, as the timing and application process have been laid down by law,” says Isaacson.

He estimates that 50 to 60% of permits in the Gauteng region are illegal, based on Global Migration’s on-site audits of work permits requested by companies and checking of individual permits held by clients who have approached his firm.  “Foreign language speakers, in particular, who do not understand the application process, may contact someone they believe to be a lawyer, but who is in fact neither a lawyer nor a registered practitioner. We’ve had cases of Chinese people, for example, being issued with work permits that have not only turned out to be fakes, but  for which they have been grossly overcharged, paying R20 000 or R30 000 per permit.”

While these permits may bear what appears to be a Home Affairs stamp and may be signed by an “official”, they are illegal, and legal action can be taken against the practitioner and Home Affairs employee found to be providing such permits, as well as the permit holder, says Isaacson.

With applications for inbound permits set to keep increasing because of South Africa’s inability to keep up with the demand for internally trained professionals, Isaacson advises potential employers of foreign workers to carry out some basic checks before choosing an immigration practitioner. “To be in this business, you have to be registered with Home Affairs, so potential employers should first check on this, and also the immigration practitioner’s company registration and VAT numbers,” he advises. “In addition they should look into the immigration company’s history and track record, and ask for and follow up on trade references to ensure that they are dealing with a reputable business.”

He says that many employers, wary of fly-by-night operators, will now only deal face-to-face with immigration companies, rather than over the internet or on the phone.  “It’s been proven to us that people want to deal with us because we have an office in their area. They want to meet with us so that they can ask and answer questions, as do foreigners wanting to work in South Africa as immigration is obviously an important process that involves their jobs, their livelihoods and their families.”

To provide the expertise that companies require at both strategic and HR operational levels to help them successfully recruit and retain overseas employees, Global Migration, which has its head office in Cape Town, has expanded its reach with the opening of offices in Johannesburg, Pretoria, Durban and most recently London.  The London office also assists in smoothing the way for South African companies setting up in business overseas, and works closely with a UK-based immigration company when more complex UK visas are required.

Isaacson says an important internal development for Global Migration’s South African branches is that it has recently appointed a staff member who speaks Mandarin and Cantonese to service its Chinese clients effectively. “We also have a Chinese website, and an interpreter is present when staff members who don’t speak these languages consult with our Chinese clients.”  He adds that his company’s employees are now able to communicate with clients in about 15 languages to facilitate the work permit application process.

The company also offers seminars to directors, managers and HR managers throughout South Africa, covering the work permit process and issues relating to this, as well as the statutory requirements that employers must adhere to when employing foreigners.  

For more information, phone Global Migration on 021 4190934 or visit www.globalimsa.com.

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Choose your immigration practitioner carefully

Foreigners should carefully choose the immigration practitioners they engage to apply for permits to live and work in South Africa, as the application process are shared between governments as records of the application process are shared between governments  on an individual’s travel or movement record.  Any immigration offence, such as overstaying after a permit has expired or being in possession of an illegal permit, may be registered worldwide and will count against an individual when further applying for South African permits or visas to other countries.

In South Africa, only an attorney, advocate or registered immigration practitioner who meets government criteria and is bound by its code of conduct may legally represent a foreigner in applying for permits at Home Affairs. But many fly-by-night operators provide permits illegally, at exorbitant prices, leaving unsuspecting people open to legal sanctions if caught with such documents.  These operators often prey on foreign communities that do not understand our languages well.

Before engaging a practitioner, it is important to establish that person’s credibility.  Ask for references from current clients and check the practitioner’s registration certificate. Many people who call themselves immigration practitioners or agents are third parties who act as intermediaries, approaching registered practitioners on behalf of applicants and adding a substantial mark-up to the practitioners’ fees. To prevent “double handling,” as this is called, my company, Global Migration, will not deal with any agent if we can’t speak directly to their clients.

Some agents act as runners, merely collecting documents from applicants and handing them in at Home Affairs. They may tell Home Affairs that they are representing clients, although legally they may not do so. When applications are rejected, usually because the documentation they have provided is incomplete or incorrect, these agents often ask applicants for more money to reapply.

The actual procedure is that Home Affairs needs 30 calendar days to process an application. If it intends rejecting the permit, it must give written notice to the applicant, and must provide a legal reason for the rejection. The applicant or practitioner then has 10 working days in which to answer officials’ queries or lodge an appeal.

There are no shortcuts to this process.  Foreigners applying for a change of permit or extension should do so well before their current permit expires to remain in South Africa legally. No Home Affairs official may ask for any money other than the application fee, and any permit obtained through favouritism, gifts or money is illegal.

In South Africa there is also no such thing as a provisional application. “Practitioners” will sometimes tell clients that they will submit a provisional application and later hand in any additional documents required. In fact, all required documentation must be attached to the application form: if incomplete, it will be rejected.

Agents, or even registered practitioners who are not experienced in the type of application being handled, often obtain the wrong work permit with serious implications, as some have limitations regarding renewal or application for permanent residence.

Applications for corporate permits, too, are often handled incorrectly. We’ve recently taken over the application process for three large companies whose previous practitioners kept them waiting for several months without achieving results. Once an application has been started, the process must be undone and the previous application withdrawn before a new one can be submitted. When foreign skills are urgently needed on engineering projects, for example, such delays can cost companies penalties of millions of rand per day. However, short-term permits to bring in project managers can be obtained.

In addition to checking a practitioner’s credentials and experience, prospective clients are advised to look at pricing and quality of service before engaging a practitioner, as these vary tremendously.

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Court ruling makes foreign skills more accessible to SA employers

A recent change in the immigration regulations relating to asylum seekers and refugees will give South African employers easier access to the skills of foreigners who come here to escape persecution in their own countries.

In a judgment delivered in April 2008, in the matter of Dabone and Others versus the Minister of Home Affairs and Another, the Cape High Court ruled that foreigners registered as asylum seekers or refugees may apply for temporary residence permits - including work permits - while in South Africa. Previously they were required to return to their country of origin before applying, and could not do so without giving up their refugee status.

This meant that many highly skilled foreigners were unable to take up employment in South Africa simply because potential employers did not want to get caught up in the lengthy and inconvenient deregistration and re-registration process.  

For the asylum seeker, being compelled to return home to apply for a temporary permit often meant going back into what might be dangerous territory: for example, a Zimbabwean who might be fairly prominent and might have been targeted because he supported an opposing political party might face further persecution on returning home.

Before returning, many would already have spent up to four months trying to reach the front of the queue at refugee centres in South Africa, to apply for their papers as asylum seekers. At the refugee centre in Rosettenville, Johannesburg, there are about 40 000 people a day in the queue – many literally living there in their desperation to reach the front – and the country does not have the capacity to handle this situation. Even in Cape Town, it can take several weeks before asylum seekers – including scientists, doctors, teachers and other professionals - are able to reach the head of the queue just to begin the process of applying for refuge. This is a total waste of the productive use of people’s time.

South Africa hasn’t responded appropriately because, until recently, cabinet did not recognise the problem, with severe implications both for people seeking refuge and South African companies trying to meet skills shortages. Once a country acknowledges the problem, the United Nations requires it to put resources in place to manage its refugees in terms of UN criteria, compensating the country for its expenditure on shelter, food and medical care. This situation is now being addressed in South Africa.

In terms of the Dabone judgment, it is critical for HR managers and other staff recruiters to know that Home Affairs cannot refuse to issue work permits to individuals who have been granted asylum seeker or refugee status in South Africa, and that these individuals no longer have to leave the country before applying for temporary permits. Under our immigration laws, all permits are categorised as temporary residence permits until the permit holder has completed five years of continuous work and elects to apply for permanent residence.

Once all documents for a temporary residence permit have been submitted, with refugee papers attached to the application form, Home Affairs will have up to 30 days – a calendar month – to issue the permit. Employers should not allow applicants to start work before the correct permits have been obtained, as penalties can be severe.

Global Migration can assist prospective employers and foreign workers by assessing and suggesting the best temporary residence permit option in individual cases, and acting for them in handling the entire application procedure and liaising with Home Affairs.