To be an “undesirable person” and placed on the V-List, the foreigner must fall into one of the following categories:
• Is or is likely to become a public charge;
• Identified as such by the Minister of Home Affairs;
• Who has been judicially declared incompetent;
• An unrehabilitated insolvent;
• Who has been ordered to depart in terms of the Immigration Act;
• A fugitive of justice;
• Has previous criminal convictions without the option of a fine for conduct which would be an offence in South Africa;
• Has overstayed after the expiry of their visa.

The Immigration Act requires that the affected foreigner is physically “declared” an undesirable person by being handed a “declaration of undesirability” by an immigration official. This often happens when a foreigner overstays his or her visa and departs through a South African port of entry. The immigration official will complete the declaration and hand it to the affected person, stipulating the number of days the person has overstayed: any overstay of up to 30 days renders the person banned from returning to South Africa for one year, and any overstay of 30 days or longer prohibits the person from returning to South Africa for five years.

The only way the affected foreigner may have the grounds of undesirability waived and his or her restrictions removed from the V-List, is to apply to the Minister of Home Affairs, also on the basis of “good cause”. This is effectively an appeal against the undesirability status. Often these appeals are complex and most often require the assistance of a professional.

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The Critical Skills Visa South Africa is for skilled workers whose occupation is on the Critical Skills Visa List for South Africa. This list reflects the occupations that are in demand in South Africa.

The newly published "Skills or qualifications determined to be critical for the Republic of South Africa in relation to an application for a Critical Skills Visa or Permanent Residence Visa"

This category of work visa may be issued to an applicant who falls within a specific professional category or specific occupational class determined by the Minister by notice in the Government Gazette. This is done after consultation with the Minister of Labour and the Minister of Trade and Industry.

If an applicant falls within one of the professional categories listed on the critical skills list and also has the appropriate post qualification working experience in that profession then such applicant may qualify to apply for this category of work Visa.

The applicant also needs to where applicable register with the relevant South African professional accreditation body regulating that industry as stipulated by Minister of Home Affairs. Such body must also confirm the applicant’s skills, qualifications and working experience.

Furthermore, such applicant’s qualifications need to be evaluated relevant to a South African level. An applicant for a Critical Skills Visa may enter South Africa on such visa without having secured a job offer first. It is, however, required of the applicant to confirm employment with the Department of Home Affairs within a period of one (1) year upon arrival in South Africa, failing which, the Visa would automatically lapse.

The Critical Skills Work Visa is tied to an individual and not to an employer so under this Visa a person can leave from one employer to the next without obtaining a new work Visa.
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• Against whom a warrant is outstanding or a conviction has been secured in South Africa or in any foreign country in respect of genocide, terrorism, human smuggling, trafficking in persons, murder, torture, drug-related charges, money laundering or kidnapping;
• Previously deported and not rehabilitated by the Department of Home Affairs;
• Who is or has been a member of an organization advocating the practice of racial hatred, social violence, or which utilizes crime or terrorism to pursue its ends;
• Found in possession of a fraudulent visa, passport, permanent residence permit or identification document.

Prohibited persons do not have to be “declared” as such. Often a foreigner finds that he or she simply cannot re-enter South Africa at a land border, or at a foreign port of embarkation. The reason for such restriction of entry could be that the foreigner’s identity details have been placed on the so-called “V-List” (“Visa Restricted” List) of the Department of Home Affairs.

What may also occur is that the foreigner has applied, within South Africa, for a temporary residence visa or a permanent residence permit and such application may be rejected because the DHA is of the view that a specific document or visa submitted by the applicant in his or her application, or in any past application, is “fraudulent” or has failed to be verified by the DHA.

The DHA may reject a visa or permit application on the basis of the applicant’s foreign or South African police record. Frequently while the applicant has never been convicted of the offences identified for prohibition purposes, the DHA may proceed to V-List such individual merely on the basis of its view that an ordinary “drunken-driving” conviction may render the applicant a person “not of good and sound character”. V-listing does occur on the basis of bureaucratic error.

The only remedy for a prohibited person is to apply to the Director-General of the DHA to declare him or her to be a “non-prohibited” person. Even though the Immigration Act merely requires a demonstration of “good cause” to have the DG lift the prohibition and remove his or her details from the V-List, DHA policy demands far more than “good cause” to lift the prohibition. Some of these applications are complex and technical and professional expertise is often well advised.

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General Work Visa

Under the General Work Visa there are very strict requirements. The South African government, although trying to promote work and trade in South Africa, recognize the need to give South Africans the chance to obtain employment ahead of any foreigner.

You will have to prove that you are the only person who can fill that position and that no other South African can play that role. This is done by placing an advert in a national newspaper advertising the position.

A Department of Labour report would need to be obtained.

You will also need to have a job offer/contract from your future employer.

The most important part of the process is skills assessment by SAQA (South African Qualifications Authority) in SA which evaluates your formal qualifications and compares them to a SA qualification. This process is mandatory and for this we would need your academic transcripts and award diplomas. Note under the regulations provision is made for the recognition of work experience in the absence of formal qualifications and this therefore makes provision recognition of prior work experience (RPL).

This is a paper based system which merely compares the foreign qualifications and arrives at an equivalent qualification in SA, and if qualified in SA then no SAQA needed.

Next your employer has to prove that you are the only person that can fill the position and no other South African can fill that role. This is done by placing an advert in a national newspaper advertising the position.

Please note the work Visa is issued in the name of the employer so the person is tied to the employer. If they change the job they will require a new work Visa.

There is some good news for people who are qualified through work experience only and they can qualify if they don’t require formal qualifications, ie SAQA.

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South African Permanent Residence

South Africa encourages permanent residency if you are serious about staying in South Africa on a long terms permanent basis there are many categories you can apply under.

• Hold a General Work Visa for five years and have a permanent job offer.

• Hold a Relative’s Visa sponsored by an immediate family member.

• Hold a Critical Skills Visa and have 5 years relevant work experience.

• Be in a proven life relationship relationship for five years

• Be married to an SA relationship for at least five years.

• Have held Refugee Asylum Status for five years.

• Hold a Business Visa.

• Receive a monthly income of R37,000 through Pension or Retirement Annuity

• Have a net asset worth of R12m and payment to Home Affairs of R120,000

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