Motsoaledi was speaking at a media briefing in Pretoria, on Tuesday on the amended immigration regulations, over which he said there seemed to be some misunderstanding.
He said as a result of the confusion, the department would be withdrawing the gazetted amendments to clear up the misconceptions and would re-gazette them as early as next week.
The minister admitted that his department was experiencing a backlog surrounding dependants, spouses and relatives’ visas being sought by foreign nationals who had been approved to come into the country after successfully obtaining employment.
He said in most cases while the approvals were easily obtained, they did not include spouses and dependants, which many were decrying as they were not willing to be separated from their families.
Despite understanding this need, Motsoaledi said there was a situation which allowed foreign nationals to obtain a spousal visa should they marry a South African citizen, which was causing a problem for the department. He said they were finding that, in many cases, spouses that did not exist were being created through notarial contracts simply to obtain visas.
“Through the notarial contracts you come with a partner, and go to the notary general to write you a contract stating that you are staying together as partners and when you bring that to Home Affairs, they regard you as a spouse.
“The number of notarial contracts is increasing day by day but when we send immigration officers to visit such families, they don’t find any spouse,” Motsoaledi said.
The minister said what was even more alarming was the fact that the number of these kinds of contracts were growing in “leaps and bounds”, resulting in the backlog. “This backlog is changing every day because the notarials are growing daily. Now we have a situation where immigration officers visit families for six months, with no spouse in sight, so what are we to do? Unfortunately, it’s a problem we are going to have to change because it’s in the law.”
He stressed that his department usually did not experience backlogs on critical skills, general work and business visas “but people with critical skills may be complaining of delays referring to delays in obtaining spouses for their visas”.
“The only way to know that indeed we have delayed giving someone a critical skills visa is for companies to provide us with a name of the employed person, because once you appear in the gazette and give us a letter of employment from your employer we issue it (the visa) immediately.”
Motsoaledi said that while several complaints been received from Chamber of Business units and allegations were made in the media, when requested to provide a list of names to verify, none were forthcoming.
“The reality we face is that you might be an engineer with a PhD but if no company gives you a job in South Africa, why should we allow you to come?
There must be a company that needs you and then we can come in and facilitate entry into the country.
“The change we are bringing in these amendments is to do away with the requirement of having to go to the Department of Employment and Labour and replace it with a point-based system.”
The minister said they were unable to expand more on the point-based system because it still needed to be gazetted as they wanted to hear what the public would say about the scoring or points awarded.
This comes after some media reports had stated that the department had done away with the Critical Skills Visa in favour of a point-based system.
Briefing the media on the Second Amendment of the Immigration Regulation 2014 on Tuesday, Motsoaledi pointed out that section 19(4) of the Immigration Act states that a Critical Skills Work Visa may be issued by the Director-General to an individual possessing such skills or qualifications determined to be critical for the Republic from time to time by the Minister by notice in the gazette.
However, section 19(2) of the Act states that a General Work Visa may be issued by the Director-General to a foreigner not falling within the category contemplated in sub-section 4 and who complies with prescribed requirements.
“Sub-section 4 is the one dealing with critical skills [and] this means general work is anything that is not covered in the critical skills list. The prescribed requirements mentioned in the Act are found in regulation 18 (3) of the previous regulation before the amendments.” Motsoaledi said.
Compiling the critical skills list
He emphasised that the department has not cancelled the Critical Skills Work Visa but has changed the manner in which the visa was previously operating.
“In the past, a critical skills list visa was issued every four years, and the Minister of Home Affairs is supposed to gazette skills that are critical to the economy of the country. But Home Affairs does not have the capacity, nor the knowledge, nor the skills to know what is required.
“What Home Affairs does is go to the Department of Higher Education and Training (DHET). The DHET usually asks the Human Sciences Research Council (HSRC), and the council will work with other institutions, including labour market surveys, to put up a list of skills which they think are critical for the economy of the country,” Motsoaledi explained.
The Minister also noted that critical skills are not necessarily referring to important skills or prestigious skills like some people believe.
“A critical skill is that which is critical for the functioning of the economy but there are few South Africans who can do that work, and so we are forced to go beyond the borders of this country to look for those people with such skills.
“Once the profession we have got appears on that critical skills list, which would have been gazetted by the Minister of Home Affairs, you get a letter of employment, then Home Affairs is forced to give you a Critical Skills Work Visa,” Motsoaledi explained, adding that the visa is one of the easiest to give, as it only requires a profession.
General Work Visa approval system
On the General Work Visa amendment, Motsoaledi said employers are no longer required to go to the Department of Employment and Labour, but the visa would be approved through a point-based system.
“We are going to give you points, and on the basis of that point you have to reach a particular mark, then you get your visa,” the Minister said.
The Minister said the point-based system will consider at least six criteria, including age; qualifications; language skills, work experience; offer of employment; and the ability to adapt within the Republic.
However, Motsoaledi said the department is considering replacing the ability to adapt within the Republic with income or salary being offered to an individual.
New work visa regulations withdrawn
Meanwhile, Motsoaledi announced the withdrawal of the new work visa regulations, which were gazetted on 28 March 2024 for public comments, a day before the closing date for public comments on the draft policy.
This follows the National Economic Development and Labour Council (NEDLAC) meeting held last week, where the process was questioned and Nedlac demanded the withdrawal of the regulations.
“These regulations are being withdrawn in the government gazette, simply to rectify this small error, not that we are going to change them. In the process we will change other smaller issues which we have picked up which may not [have] been understood,` he said.
Minister of Home Affairs Aaron Motsoaledi said that he would withdraw the recently gazetted Immigration Regulation Amendments.
The regulations replaced the highly-contested critical skills list with a new points-based system.
The regulations were received positively by businesses in South Africa, with the Consumer Goods Council of South Africa saying that they should ease the administrative burden that international companies with businesses in South Africa face when hiring skilled foreigners.
However, the Minister still faced backlash after the regulations were published a day prior to the closing date for comments (29 March), which he said was due to being misadvised.
He said that the Department is in the process of finalising the regulations and will provide a revised version next week.
He also announced several significant updates and initiatives within the Department.
Marisa Jacobs, the Managing Director at Xpatweb, broke down the new initiatives:
Remote Work Visa
The Remote Work Visa is designed for individuals wishing to work in South Africa while working for foreign employers.
The visa targets high-earning individuals and aims to stimulate the South African economy.
General Work Visa changes
The aforementioned Points-Based system for a General Work Visa aims to eliminate the need to obtain a letter from the Department of Labour.
This new streamlined approach looks at criteria based on factors, such as age and qualifications to determine visa eligibility on a points-based scale.
Critical Skills List
Organisations can now also expedite the gazetting process for critical skills that are seen as essential, removing the previous four-year waiting period.
This should facilitate swift approval for in-demand skills.
Trusted Employer Scheme
Jacobs said that the Trusted Employer Scheme (TES) has been successful, but the Minister warned that approved Employers will soon face stricter compliance measures, such as random checks by the Department.
Non-compliance would result in the expulsion of the TES program.
That said, the Department is inviting a second round of submissions from qualifying companies to join TES in May 2024.
Management of the Backlog
The Minister also said that 90% of the total backlog faced by the Department is due to Relative, Dependent and Spousal visas, with the delays attributed to challenges in verifying marriages.
A dedicated team has been assigned to expedite applications.
“The DHA plans to provide detailed statistics on visa approvals versus rejections to indicate the current processing times of the various visa categories,” said Jacobs.
“The Minister further touched on the current directive which allows any individual who has applied for an extension of their visa and has received a VFS receipt status in South Africa while awaiting the outcome of the application.”
Review of the White Paper
The DHA is also reviewing laws outlined in the highly controversial White Paper on Citizenship, Immigration and Refugee Protection, with a focus on replacing certain sections.
The White Paper aims to amend the South African Citizenship Act, which Motsoaledi called a ‘relic of the colonial era’, but Rebecca Walker and Loren B Landau from the University of the Witwatersrand that the changes are just a smokescreen to distract voters from the government’s failures ahead of the elections.
“Changes being considered adhere strictly to regulatory frameworks, ensuring compliance and legality,” said Jacobs.
New Start-up Visa
A new start-up visa is also being considered for individuals wishing to open or invest in a small- or medium-sized business in South Africa.
Concerned individuals will also be afforded access to the corporate account unit within the DHA.
Key Take Away
“Where you need an urgent work or residency visa, the process has not changed much for the past two years �` you need to apply as early as possible and be ready for legal escalation where DHA do not do their job,” said Jacobs
“We are cautiously optimistic, as we are seeing quicker turnaround on some matters. Yet, we were also today in court against DHA, so there remain two sides to the coin.”
“A correctly issued work and residency permit is one of the most stressful events where it goes wrong, as it impacts every aspect of one's life "
The Eastern Cape has the highest amount of working hours lost at more than 7 900. Mpumalanga lost 5 990 hours, while Gauteng lost 4 621 working hours.
This was revealed by the Minister of Home Affairs, Dr Aaron Motsoaledi, replying to a Democratic Alliance (DA) parliamentary question on the total hours lost in each province due to load shedding.
DA MP, Christopher Roos, who posed the question, says this is an alarming number of working hours lost, and is a concern for service delivery.
“This despite for tens of million of rands being spent on equipment upgrade, communication upgrades at Home Affairs offices. And the minister of Home Affairs needs to start pretending to care for our people at least, and head to the DA’s request to have the system down-time status displayed on the Home Affairs website so that while at least they try to sort the issue out, that people will not have to waste their time travelling all the way to the offices, especially in places like the Eastern Cape where the issue is worse by far than any province. So people do not have to waste their time always travelling there only to find out that the system is off line and they will have to travel back and come again.”