The Chairman of the Portfolio Committee on Home Affairs Parliament of South Africa
13 July 2004
Dear Sir or Madam
SUBMISSION WITH REGARD TO IMMIGRATION AMENDMENT BILL
We would like to thank the Chairperson for the opportunity to submit representations regarding the Draft Immigration Amendment Bill.
We believe that there are a number of issues raised by the Draft Amendment Bill that should be brought to your attention. These are set out below together with a brief explanation/motivation for our comments. 1.Background:
I. I We previously provided suggestions and recommendations on the draft Immigration Act during the public hearings held in April 2002.
1.2 A number of these matters remain unresolved and therefore these are included again in addition to our comments on the proposed amendments.
2.DeletionofSection7-publicparticipationintheregulationmakingprocess andamendmentofSection8-adjudicationandreview
2.1 One of the strengths of the Immigration Act is the requirement for public participation and feedback in the legislation and regulation making process. This gives business and interested individuals an opportunity to raise issues where they feel that the immigration legislation/regulations may, for example, adversely impact upon the ability of South Africa to attract skilled labour/investment.
2.2 We are concerned that removal of the requirement for public participation in the regulation making process will not send the right message to the world at large, and will lead to situations seen in the past where it has been necessary to resort to the courts to seek to redress aspects of the legislation or regulations that, for example, are unconstitutional.
2.3 We do not believe that it is in South Africa's interests to amend Section 8, and believe that it should remain as presently drafted. Along the same lines as above, this represents an erosion of the democratic principles and fair administrative process within the Immigration Act.
3.Definitions-:
3.1 The clarification of what is meant by work (and as a result who is required to be in possession of a work permit) is welcomed. However, its application will result in impractical difficulties for a number of categories of persons that are (subject to visa exempt status) currently accommodated on a visitors permit (with special conditions), but will now be required to apply for a work permit.
3.2 There are many examples, however, some of the more important are members of the sporting, entertainment, movie and fashion industries. For instance, what will be the requirements for soccer players and the team management entering South Africa to participate in the 2010 World Cup? In most cases, international sportsmen, visiting artistes, film stars and models spend short periods of time in South Africa and often generate significant business for South Africa. In most cases, such persons do not have a South African employer and have entered South Africa on visitors permits
obtained at the Port of Entry.
3.3 The proposed definition of work "Being employed or conducting such activities consistent with being employed or consistent with the profession of the person with or without remuneration or reward from within the Republic of SA" will now impact the above category of persons and will increase significantly the administrative burden on such persons, and may adversely impact upon South Africa's attractiveness as a location, for example, for model and film shoots.
3.4 This will also apply to short-term consultants such as IT and other specialists often contracted by labour brokers.
3.5 Indeed, it appears that it would be impossible for them to apply for a work pen-nit, as there is no employer registered in South Africa. The SA Missions advise applicants that a work permit application cannot be submitted if there is no employer in South Africa.
3.6 It is strongly recommended that the legislation should permit such persons to continue to enter South Africa on visitor's permits either by excluding such persons from the definition of work or including a specific category within work pen-nits that have the same administration requirements as temporary visitors pen-nits that can be obtained at the Port of Entry.
4.VisasandSectionII-TemporaryResidencePermits (Section 10 (6) Page 10 of the Amendment Bill).
4.1 We consider that Sect 11(1) (b) (i) needs to be amended to offer foreign nationals who obtain a visa for, say 6 months, prior to entry to the Republic to obtain a temporary residence permit for 6 months at the airport instead of the maximum of 3 months.
4.2 Section 11 (4) of the Act provided for multiple entries into the Republic over a period not exceeding 3 months. This has been removed by the Amendment Bill which will result in a person requiring to stay in SA for a 3 month period, and being in possession of a 3 month TRP, but during this time may be required to travel to a neighbouring country, s/he may not re-enter SA on the existing TRP, but will be required to re-apply for a new TRP. The multiple entry clause should remain.
4.3 The wording of Section 11, point 13 of the Amendment Bill (Page 12) " Amendments of Section II" indicates that visitors permits in terms of Section 11( b) (ii) may not exceed a period of 3 years. A work permit holder can renew a work pen-nit beyond a three -year period, however, it appears as if a non-working spouse or non-school going child, would be unable to extend his/her temporary residence permit beyond a three year period. The legislation needs to specifically deal with spouses and other dependents of persons holding work pen-nits and permit extension
of their permits in accordance with the extension of work permits.
4.4 The legislation should specify that Pen-nits issued in terms of section 11 maybe extended (and are not limited to 3 years without option of extension - as some regional offices apparently interpret it). 5.BusinessPermits(Page14oftheAmendmentBill,par17;Section15oftheAct)
5.1 We recommend that the requirement for a chartered accountant certification should be retained in this category (see below).
5.2 This category has been subject to much interpretation and each office of the DOHA appears to follow its own interpretation. Firstly, a number of offices argue that if a husband and wife apply for a business permit together each must satisfy the minimum business investment criterion. Unless both persons obtain own business pen-nits, this prohibits one of the spouses from working within the business. We suggest that this was not the intention of the Act and request that the legislation
should be amended to make it clear that the minimum investment is required for the business and would cover both spouses.
5.3 Secondly, whilst the extension of the category to persons working in existing own businesses (permits granted in terms of the Aliens Control Act) is welcomed, the requirement to satisfy the new conditions can result in persons not being in a position to extend their permits even though they might be successful and employing South African nationals. In particular, it is very important that the regulations are amended as was proposed to require a Chartered Accountant to confirm business viability based on the proposed financial investment and not require an arbitrary
minimum investment of R2,5 million.
6. Work permit (Page 14; Par 21 of the Amendment Bill; Section 19 of the Act)
6.1 One of the main benefits of Immigration Act put forward by the Department was that foreign nationals would have a choice of pen-nits to choose from. The process was compared with a visit to the supermarket to choose the permit best suited to the applicant and the employer. However, in terms of the Amended Bill it appears that there will be nochoiceatallas employers are forced to use the quota permit route until the quotas are fully utilised. We are unaware of any systems put in place to monitor the issue of quota permits by the Department and are thus reluctant to proceed in this manner, particularly in instances where all criterion for the issue of an Intra-Company Transfer category of work permit would be met.
6.2 The main issue that employers have with the quota permit is that the Regulations introduced a training levy of 2% of the employees' remuneration. This levy was introduced in the regulations despite being removed from the Act by the Portfolio Committee (this is one reason why we believe that the regulations should be issued for public comment). It appears that the public will have no input to the Regulation process, and it is very important that the imposition of the levy is reconsidered in light of the mandatory use of the quota permit. Also to be taken into consideration is that employers are already required to contribute to a skills development levy regulated and monitored by the South African Revenue Services.
6.3 It is understood from informal discussions with DOHA that it is proposed to that the levy will be removed. Irrespective of this, we consider that the applicant and the employer should have a choice as to which work permit category in which to apply.
6.1 Intra-company transfer permits (where an employer transfers from a foreign employer to a South African subsidiary or branch) are limited to 2 years. We can see no reason for this limitation, especially as many transfers are for periods in excess of 3 years. Whilst we agree that some period limitation is required, our view is that intra-company transfer work permits should be for at least 3 years with an opportunity to extend to a further 2 years it required and subject to suitable motivation.
7. Direct Residence
7.1 The Immigration Act provides for permanent residence after a person has been employed in South Africa for 5 years. DOHA is interpreting the "5 years" referred to in this section as starting from the date of the implementation of the Immigration Act.
7.2 We do not believe that this was the intention of the Immigration Act and we believe that the Act should be amended to specifically provide that the five- year period commences from the date the first work permit was issued to the foreign national, under any South African Immigration Act (including the Aliens Control Act).
8 - Section 2 0: Retired Persons Perm it
8.1 Currently, this category would appear to exclude persons that hold their assets through investment structures such as trusts, as assets held in trust are not assets of the individual and they would not satisfy the assets/income criteria.
8.2 Many wealthy persons hold all of most of their assets in trusts or similar types of vehicles (to ensure succession of family businesses, reduce inheritance taxes etc.).
8.3 We do not believe that such persons should be precluded from applying for the retired persons permit. Accordingly, we recommend that consideration is given to granting retired persons pencils in circumstances where it can be demonstrated that a person is an income and capital beneficiary of a discretionary trust with sufficient funds/income to qualify. This could be certified by a chartered accountant. 9. Chartered Accountant Certifications
9.1 The need to produce a chartered accountant certification in support of an application has been removed in the draft Immigration Act. You will recall that the motivation for this was that it formed an independent report on the existence of the position, remuneration package and income/assets of the applicants (depending upon the category of the application). This then removed the need for Home Affairs officials to spend time validating the information provided by the applicant.
9.2 Whilst we agree with the removal of the certification for categories such as intra- company transfer work permit, quota and general work permit, we believe that it is still necessary when considering applications in the business category (to confirm the viability of the proposed business and financial resources), corporate category and all the other permits that require proof of financial means to be provided. We therefore recommend that the requirement for CA certifications should be retained for all categories where it is currently required except for work permits other than
in the business category.
We thank you for your time and please do not hesitate to contact us should you wish us to
motivate our recommendations further.