Penalties in SA’s new visa laws, requirements for landlords

Penalties in SA’s new visa laws, requirements for landlords

The implications of new immigration legislation in South Africa

South Africa’s amended immigration regulations became effective on 26 May 2014. Commenting on the legislation, Niki Gerneke of Shepstone & Wylie Attorneys commercial law department says that they have clamped down on foreigners who wish to apply for, or extend their visas or permits. “Permits” are now referred to as “visas” in accordance with the new legislation.

Penalties for overstaying length of visa

Foreigners who overstay after the expiry of their permit “may” be declared an “undesirable” and be penalised as follows:

• Overstay between 1 day and 30 days:  “undesirable” for 12 months;
• Overstay for a second time within a period of 24 months: “undesirable” for 2  years;
• Overstay for more than 30 days: “undesirable” for 5 years.

Once a foreigner is classified as an “undesirable” they will be denied entry into South Africa until the classification is lifted, by effluxion of time, alternatively after a successful application to the Department of Home Affairs to have it reviewed and lifted. The main impact of this legislation change is that persons who remain in the country awaiting the outcome of their applications after their previous visas or permits have expired, should no longer do so as they run the risk of being declared an “undesirable” by the immigration official at their port of departure.

Those with less than 6 months to run to the end of their visa validity should start now to consider their renewal options, or look at obtaining longer term residency status to avoid being disappointed should they be left with not enough time to avoid the “undesirable” classification.

First time applications

Applicants holding visitors (and medical treatment visas) can no longer make first time applications for another type of visa within South Africa, unless they can prove that “exceptional circumstances” exist. For foreigners on visitors visas, these exceptional circumstances are limited (only) to the holder being in need of emergency life saving medical treatment for longer than 3 months; and accompanying spouses who make application for a study or work visa.

The legislation change presents particular difficulties for German life partners. Life partnerships are not recognised under German law, so the South AfricanEmbassy in Germany cannot process them. German couples historically used to have the German national enter South Africa on a visitor’s visa and then convert it to an accompany spouse permit, whilst in South Africa. This option has disappeared, entirely, unless the accompanying spouse applies for a study or work visa, because the ‘exceptional circumstances” referred to in the Regulations are a closed list.

In addition, on 15 May 2014, Home Affairs issued a Directive stating that applications for visitor visa’s incorporating the right to conduct business must be submitted at its Missions abroad for first applications, with immediate effect. Previously there had been a distinction between applicants from Visa Exempt and Visa Restricted countries.  Visa Exempt applicants were allowed to enter South Africa and get their visitors visas at their port of entry. This is no longer the case. Home Affairs has placed this process now entirely within the discretion of the Mission abroad whether to issue the visas or a letter (in terms of which the endorsement is collected at the port of entry).

Accompany Spouse Visas

Whereas under the previous Regulations there was no criteria for determining how long a life partner relationship has been in existence in order for a couple to make application for a spousal permit, the new Regulations require an applicant to prove that their relationship has been a permanent and spousal one for more than 5 years prior to the application being made.

Proof of a spousal relationship has historically included:

• details regarding 3 relatives and/or friends – name, address, relationship, identity or passport number, letters of support, a copy of their identity document or passport;
• lease agreement or joint ownership of property;
• joint signatures on bank account or other accounts;
• municipal accounts in the applicant’s name;
• photographs.

This change in the legislation is going to have a substantial impact on those couples who are not married and choose to obtain their accompany spouse visas  on the basis of a civil union. They will probably not be able in due course to renew their visa, unless their civil union relationship is more than 5 years old when they  apply for the renewal.

Quota and Exceptional Skills Work Permits

Home Affairs’ has done away with the “Quota” and “Exceptional Skills Work Permit” categories, combining them instead into a “Critical Skills Work Visa”. There is currently a General Notice being circulated by the Department of Home Affairs calling for public comment on the National Scarce Skills List: Top 100 Occupations in Demand.

What this means for those who currently hold “Quota” and “Exceptional Skills Work Permits” is that they will not be able to renew them going forward.  They will need to apply for a change of status to a “Critical Skills Work Visa” (once the List of Scarce Skills is published) or to change to another work visa.

General Work Visas

Good news for “General Work Visa” applicants is that the duration of these permits has been increased from 3 to 5 years. Most of the requirements under the previous Regulations stay the same. The new regulations have, however, increased employer responsibilities with regard to the work visa.  Employers are now required to provide written undertakings to the Department of Home Affairs:

• accepting responsibility for the costs relating to deportation of an applicant and any dependant family members (if applicable);
• accepting responsibility to ensure that the applicant has a valid passport at all  times;
• to inform the Director General of Home Affairs if an applicant is no longer in its employ.

In addition, an applicant is now required to obtain a certification from the Department of Labour stating that:

• despite a diligent search, the prospective employer has been unable to find a suitable candidate with qualifications or skills and experience equivalent to those of the applicant;
• the applicant has qualifications or proven skills and experience in line with the job offer;
•   the applicant’s employment contract is in line with South African labour standards;
• salary and benefits offered to the applicant are not inferior to the average salary    and benefits of citizens or employees occupying similar positions in SA;
• it has received proof of the Applicant’s qualifications evaluated by South African   Qualifications Authority; and
• it has taken steps to confirm that the employer is registered with the Commission on Intellectual Property and Companies (CIPC) where applicable.

The Department of Labour will require proof of these elements prior to the issue of the certification. How long this is going to take to be processed by the Department of Labour remains to be seen.

Intra-Company Work Visas

The requirements for applications for “Intra-Company Work Visas” have not changed too much when one considers the additional documentation historically submitted under the previous Regulations.  They include:

• a written undertaking from the South African employer to accept responsibility for costs relating to deportation of an applicant and any dependant family members  (if applicable);
• a written undertaking from the South African employer to accept responsibility for an applicant having a valid passport at all times;
• the applicant’s contract of employment with company abroad, valid for a period of not less than 6 months;
• a letter from company abroad confirming that the applicant shall be transferred to a branch of that company or an affiliated entity situated in South Africa;
• a letter from the South African employer confirming transfer of the applicant as well as their occupation and capacity to be employed;
• an undertaking from the South African employer that the applicant will only be employed in that position;
• an undertaking from the South African employer  that the applicant will at all  times comply with the Immigration Act.

The period of Intra-Company Work Visas have been extended from 2 to 4 years under the new Regulations.

Employers:

Please NOTE that ALL employers in respect of the holders of ALL work visas, are legally obliged to keep on record:

• a certified copy of the foreigner’s passport;
• a copy of the relevant visa or permanent residency permit;
• proof of the capacity in which the foreigner is or was employed;
• a copy of the foreigner’s IRP5 form or certificate of earnings and job description, respectively.

Is a foreigner living on your premises?

All persons who own a hotel, motel, boarding house, boarding lodge, guest house and/or an apartment building, in which foreigners are residing, are required to keep the following information relating to the foreigner on file, to be safeguarded for a period of 2 years:

• full name and surname;
• copy of their ID or passport;
• proof of their residence in South Africa;
• their usual residential address;
• their signature.

       Study Permits

       To touch briefly onStudy Permits,the Regulations require:

an official letter from a learning institution of provisional acceptance stating the nature and duration of the course, that the applicant has complied with all the  admission requirements, including any applicable language proficiency requirements, as well as details regarding proof of sufficient funds to cover  tuition fees, maintenance and incidental costs;

• medical insurance;
• proof of sufficient financial means;
• an undertaking to keep the Department of Home Affairs informed if an applicant discontinues his course or fails to qualify for re-enrolment;
• an undertaking by the learning institution to provide proof of its registration as a learning institution, within 30 days of registration;
• an undertaking from parents and/or guardians of the applicant that they will have medical cover for the full duration of study;
• if a foreign State is accepting responsibility for the applicant in terms of a bilateral agreement – a written undertaking from that State to pay for applicant’s departure;
• in respect of minors – particulars, proof of physical address and contact details of an adult responsible for them in South Africa, including a confirmatory letter; a letter from both parents and/or guardians confirming permission for enrolment, inclusive of a court order, if applicable, and the applicant’s birth certificate.

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