Another loose thread left hanging in South Africa

President Cyril Ramaphosa has again reaffirmed the government’s intention to introduce a remote working visa repeating a promise made a year ago to help solve South Africa’s growing skills crisis.

Despite the stated intention, however, the president has given no further details on the plan, nor any timelines associated with it. Meanwhile, repeated comments from the Department of Home Affairs on the matter show that zero progress has been made to make these visas a reality.

Responding to several parliamentary Q&As in 2022, Home Affairs minister Aaron Motsoaledi stated plainly that there are no provisions for such a visa in South Africa’s laws as such, there are no plans to launch one.

“The current visa categories are legislated by the Immigration Act No. 13 of 2002. In its current form, the Immigration Act does not make provision for digital nomad eVisa. Therefore, there are no plans to implement a digital nomad e-visa,” he said at the time.

This has become a sore point for those involved in South Africa’s tourism industry.

According to the City of Cape Town, it has been pushing for a remote worker visa since the lifting of lockdown, after the Covid-19 crisis wiped out the travel and hospitality sectors in the country.

“Since then, we have been lobbying for the introduction of a remote working visa because of its massive economic spinoffs for the industry. Our research shows that a special visa would help attract more international visitors, particularly ‘digital nomads’ who can work virtually from anywhere in the world,” it said.

The city said that working tourists tend to spend up to R50,000 during their stays and that over 40 countries around the world have already adopted these special visas to boost their own economies.

“If our visa system is not revised and improved, we stand to lose out to destinations with less arduous administrative platforms. Remote workers have exploded onto the travel scene and, according to one report of an incentive programme in Oklahoma in the USA, digital nomads generated nearly $20 million in additional local gross domestic product.

“With a special visa, South Africa stands to realise such gains,” it said.

In lieu of an actual plan of action from Ramaphosa, the city is proposing an amendment to Section 11 of the Immigration Act, which relates to an extension of visas beyond 90 days for specific activities.

Through an amendment, the Act could include the following requirements:

• An applicant must provide evidence of employment abroad, as well as a sufficient income from such employment or own business registered abroad;

• Prohibit the applicant’s work activities in South Africa;

• Allow the applicant’s dependents to accompany them on application.

“If South Africa were to implement such strategies, we could indeed create a tourism-related job in every home in the country. Whether you’re in aviation, logistics, transportation, boat-building, hospitality, retail, design, or clean energy, tourism relates to your work because it brings clients to your door,” it said.

While South Africa has made no forward movement on nomad or remote work visas, some measures to address the skills crisis in the country were introduced in the last 12 months.

Most notably, Home Affairs published an updated critical skills list and moved to fast-track critical skill visas in the country. An apparent collapse of visa processing in August 2022 led to a significant backlog forming by the end of the year, however.

The backlog is only expected to be cleared up by June 2023

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High Court declares sections of Refugees Act unconstitutional

The Western Cape High Court declared sections of the Refugees Act unconstitutional. 

• Western Cape High Court Deputy Judge President Patricia Goliath has declared sections of the Refugees Act unconstitutional.

• According to the act, asylum seekers who do not renew their visas within one month of the date of expiry are considered to have abandoned their asylum applications.

• The judge said that the essence of the minister of home affairs’ argument was that most asylum seekers are not genuine and use the process to “avoid meeting the requirements of immigration laws”.

The Scalabrini Centre of Cape Town has won a significant victory against the minister of home affairs in the Western Cape High Court, which has declared sections of the Refugees Act unconstitutional. 

The sections in question provide that asylum seekers who have not renewed their visas within one month of the date of expiry are considered to have abandoned their asylum applications.

This, Scalabrini argued in its application before Deputy Judge President Patricia Goliath, meant that delinquent asylum seekers were considered to be undocumented, treated as “illegal foreigners”, without access to jobs and social services, and faced deportation.

Scalabrini launched a constitutional challenge against two sections of the Refugees Act as well as parts of the act’s regulations.

In her ruling this week, Goliath deemed these sections and regulations unconstitutional. This ruling, however, will still have to be ratified by the Constitutional Court.

Scalabrini’s core mandate is to assist and safeguard immigrants and displaced communities, including asylum seekers and refugees. It is also a member of the Consortium for Refugees and Migrants South Africa (CoRMSA) which comprises 26 organisations with similar objectives.

Scalabrini previously obtained an interdict against the minister, suspending the implementation of the relevant sections of the act and the regulation, pending the outcome of the constitutional challenge which then was heard by Goliath.

The organisation argued that those who did not reapply within the legislated time-frame were deemed undocumented. Even though they had a valid refugee claim, they could be sent back to their countries where they may face persecution, death, torture, sexual violence and other threats. It said that home affairs officials had a duty to ensure that people were given a reasonable opportunity to apply for a visa.

This, it was argued, violated the right to non-refoulement (a fundamental principle of international law which forbids a country receiving asylum seekers from returning them to a country in which they would be likely to be in danger of persecution).

CoRMSA, admitted as an amicus curiae (friend of the court) in the matter, made submissions about the impact of “abandonment rules” on asylum seekers, particularly their children and ability to protect themselves. The consortium said the provisions in the act were counter to the protective goals and purpose of domestic and international refugee law.

Goliath said the minister acknowledged that the abandonment provisions violated the Constitution, but argued that they were rational and justifiable due to the fact that asylum seekers behaved in a recalcitrant manner and failed to renew their visas in good time. This created backlogs and imposed an administrative burden on the department.

It was not disputed that it took, on average, five years for asylum seekers to be recognised as refugees, and therefore had to renew their visas between 10 and 20 times in that period.

“Asylum seekers are permitted to work, study, and use social services … Without a valid permit, they, as well as their children, become vulnerable to deportation.”

Goliath said the essence of the minister’s argument was that most asylum seekers were not genuine and used the process to “avoid meeting the requirements of immigration laws”. The abandonment provisions incentivised them to finalise their applications.

The judge said, however, that the provisions were certainly not in the best interests of affected children, as was required by law and international conventions and charters. “The provisions take effect automatically after the expiry of 30 days with no individualised regard to the impact of affected children,” she said.

“The mere fact that representations can be made to the standing committee, after the fact, once a child is already rendered undocumented for extended periods is of no use or assistance. This is aggravated by the absence of formal procedures to make representations, let alone any procedure to ensure that the voices of the children are heard.”

She said South Africa is obliged to establish systems and allocate resources to ensure “the international human rights law protection of refugees and asylum seekers”.

She said the provisions were clearly arbitrary because asylum seekers would no longer be deported based on the merits of their claims, but on external circumstances, such as the nearest refugee centre, the length of the queue there and the workload of home affairs officials.

“At the heart of [the minister’s] justification is an unlawful presumption and prejudgment that most asylum seekers have no valid claims and no interest in pursuing these claims. This violates the core principle of refugee law that asylum seekers must be treated as presumptive refugees, with all the protections this entails, until the merits of their claims have been finally determined through a proper process.

“The right to non-refoulement is of great importance in the overall constitutional scheme as it recognises human beings’ right to dignity.”

Goliath directed that the legislation be amended to rectify the defect and that the minister pay Scalabrini’s legal costs.

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President’s Red Tape Reduction task team’s power limited by red tape

Though they`re helping reduce government red tape, the task team has limited power, and is working on fixing this, along with defining what red tape is. 

If you’ve been wondering what President Cyril Ramaphosa’s Red Tape Reduction task team has been doing after the president announced it during last year’s State of the Nation Address, the short answer is: not much.

According to the Parliamentary Monitoring Group (PMG), the Red Tape Reduction task team in the Presidency met with the Small Business Development Committee on 16 November for a brief on its progress.

The objective of the task team was to make tangible progress in reducing excessively complex rules, regulations, procedures, and processes that inhibited economic growth and job creation in key areas of the economy, and work with relevant role players across government, the private sector and community-based organisations.

Sipho Nkosi, head of the task team, said in his presentation that the team currently has no permanent structure and need administrative capacity, with the Presidency playing a central oversight and coordination role, while direct implementation is done through multiple government departments and agencies, including the departments of trade, industry and competition (DTIC) and small business development (DSBD).

The PMG says in its report on the meeting that the task team identified almost 100 potential red tape issues and initially focused on three highly important areas that were potentially capable of showing improvement in the coming months.

These prioritised areas were tourism travel permits, the mining and prospecting rights licensing system, and work permits and visa administration, Nkosi said.

Tourism travel permits red tape

“Tourism travel permits was a long-standing issue for an important industry, impacting established and emerging operators alike. There has been progress recently following engagement between the department of transport and the industry, with the support of the minister.”

The department made progress in reducing the licencing backlog, but the existing process remained cumbersome, with additional requirements not contained in the regulations. 

Nkosi said the minister remained engaged in the process, but meanwhile tour operators could not offer visitors any tours that included transport.

Mining and prospecting licenses

As far as the mining and prospecting rights licensing system is concerned, Nkosi said the growth of the mining industry is hindered by the lack of a modern system to administer mining and prospecting licences, with the procurement process for licences delayed in part due to differences between the State Information Technology Agency (SITA) and department of mineral resources and energy (DMRE).

The task team was planning to meet with the DMRE to discuss how the RTR process could help.

Work permits and visas

Regarding work permits and visa administration, Nkosi said the inability to process work permits quickly negatively impacted international firms’ ability to operate in South Africa and attract critical skills.

He said a report was prepared by Operation Vulindlela, under the leadership of former department of home affairs (DHA) director-general, Mavuso Msimang. It was with Minister Aaron Motsoaledi and a detailed briefing was scheduled to plan a way forward.

“The RTR programme will support the implementation of the recommendations, which would be based on engagements with the DHA regarding the programme of work.”

Nkosi said other recent areas of interest included informal trading permits and licences and early childhood development (ECD) regulations. 

These were under consideration and letters were sent to the premiers of each province to engage and encourage the establishment of red tape-reduction units in their provinces to create dedicated capacity in each province that will form part of the overall architecture to tackle RTR more systemically.

The task team met with Business Unity South Africa (BUSA) regarding focus areas and priorities and explained that the RTR programme generally focused on economic blockages, including those affecting small, medium and micro enterprises (SMMEs) and larger businesses.

A second consultative reference group meeting was scheduled for 17 November, including representatives from the DTIC, DSBD and business organisations such as BUSA and the Black Business Council (BBC).

Questions from the committee

The committee wanted to know if the task team uses an assessment tool to determine the impact of red tape. 

It also asked if the task team considered the involvement of small businesses in the energy crisis, making getting e-hailing permits easier for transport providers, and easing the restrictions of labour legislation.

Another question from the committee was what was done about the inefficiency of importing and exporting goods through the harbours due to red tape. 

The committee members also emphasised the need for officials to be held accountable for paying invoices within 30 days, saying that the access to and uptake of the funds made available to small businesses needed to be improved.

Answers from the task team

Nkosi said in his response to comments from the committee members that the task team is working on defining red tape and it had a long list of issues that it will focus on as resources become more available, including the use of the assessment tool, the payment of invoices, and labour legislation.

He also said that the team did not currently have powers, but was negotiating to see what it can do with its limited powers.

About small businesses, he said that access to finance had always been a big issue for African youth and those wanting to start small businesses, which needed to be addressed as a country. The task team is doing research on this, although not much work had been done on small business and red tape.

Anthony Costa, investment lead in the Office of the Presidency, said there had been a great demand for engaging with and sending queries to the task team, but part of the challenge was that with its current structure, the team was unable to attend to individual queries from citizens, consumers, or small business owners.

“There was no capacity or mandate to do so and the team looked more into the systemic issues. Team members first needed to understand their engagement structure.”

He added that the task team was aware of the question of the ease of doing business and had worked closely with the DTIC on that. 

“The ease of doing business was being reshaped in terms of a separate piece of work around improving the business environment

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Rude, unhelpful and unfriendly`: Home affairs booking system has Western Cape citizens seething

• The Department of Home Affairs launched a new appointment booking system last year.

• But citizens in the Western Cape have complained about poor service delivery and communication.

• It appears that the website may also have been affected by glitches in the past.

Ten months after the Department of Home Affairs launched a new online appointment booking system at select offices across the country, South Africans have described `chaos` and poor service delivery at branches in the Western Cape.

The department launched its Branch Appointment Booking System (BABS) in May last year.

Many people who spoke to News24 recently complained that the system discriminates against citizens who don`t have access to computers, smartphones and the internet. The primary complaint is that whatever system is in place is not being communicated to people ahead of time.

After witnessing about 100 people waiting in the sun and hearing numerous complaints, News24 couldn`t find one official to explain what system was in place at the Barrack Street office in Cape Town on Friday, 3 February.

Jill Francke arrived early one morning and waited in what she thought was the correct queue for an hour, before being told she was in the wrong line. She was forced to the back of another queue.

`There was no way of knowing which queue we were supposed to be [in], so only then did we discover there are queues for identity documents, passports, and temporary identity documents.`

Francke said she had been queuing for five hours and described home affairs department staff as `rude, unhelpful and unfriendly`.

Kaylin Snyman complained about queuing for almost eight hours to apply for a new identity document, while accompanied by her diabetic mother. Her mother - Veronica Pietersen - said she paid R10 to rent a chair for four hours to sit down.

Eileen Dyson, 65, described how she spent four hours queuing one Tuesday without being helped. She returned to wait in line once again for seven hours.

She said:

I`m unemployed, but every time I must find R50 travel money to get into town and back home again.

A man waiting outside the Barrack Street office, Patrick van Niekerk, complained that no one had communicated what steps they should follow.

`Other people have arrived and been allowed in immediately, but there is no ticket system, so we don`t know what`s going on.`

Officials at the office weren`t able to give News24 much information on what the standard operating procedures were.

`It`s not fair`

One manager indicated that they had `sent the van to assist with the queue`.

A van was indeed parked outside the building, but the occupant wasn`t assisting anyone and declined to respond to any of our questions.

Back at the office, another manager refused to explain what system was in place, but provided News24 with an A4 page subtitled `Waging a war against long queues`, which explained the `Branch Appointment Booking System (BABS)`.

Similar scenes were described by people queuing in Stellenbosch and Somerset West.

A Somerset West pensioner - who preferred to remain anonymous - described the `terrible experience` she had standing outside in the heat for six hours to collect a passport.

She said:

I can`t understand why I must wait for long because all I needed to do was collect a passport.

`It`s not fair on the people that wait in the queue from 05:00. They go early to get help, but then others who have booked online get attended to within minutes.

`What about the thousands who cannot book online?

`And when there is load shedding, everything is off, while you have to stand for two hours, and when load shedding is over, then the computers have to reboot, which takes another hour.`

Online gremlins

There also appear to be problems with the online booking system.

A woman identifying herself as `Lisa of Cape Town` wrote to the minister on the People`s Assembly website in August last year about glitches on the home affairs department website: 

`Your website is absolutely terrible! It has been since we were told to use the online booking system. Myself and friends and family and neighbours and random strangers fight every single day to firstly get the website to actually load, then secondly, when it does, you log in and click next, then the website gives an error of `Service not available`, then you try again, and the website does not load.`

Department officials declined to respond to questions or were unavailable.

www.samigration.com

US Permit Some H 1B & L1 Visa Holders to Renew Their Visas Without Leaving the Country

Some H-1B visa holders may soon be eligible to renew their visas without being obliged to leave the country after the US State Department has announced that it is looking forward to further easing these visa procedures.

According to an announcement provided by Mint, all employees working in the United States through the H-1B and L-1 visa programs will soon be eligible to renew their status domestically, following the pilot program that was introduced by the State Department earlier this year, VisaGuide.World reports.

However, despite the fact that the new changes will bring significant benefits to their holders, it has still not been confirmed how many renewal applicants the new pilot program is eligible to accommodate.

Recently, in a report provided by Bloomberg, the deputy assistant secretary for visa services in the Bureau of Consular Affairs, Julie Stufft, considered that restoring stateside visa renewals will reduce the workload of consular offices in other countries and will also minimize the workload of consular offices.

“We all saw during the pandemic how difficult it was for these people to return to their home country and often not be able to get visa appointments to come back to their home, the United States. That’s what we’re trying to address initially with this,” she pointed out in this regard.

Stufft emphasized the fact that the stateside renewal will be eligible to all H and L visa holders and could be further expanded.

The US States Department has been urged many times to add the domestic renewal option by business groups and immigration lawyers as part of efforts to further ease visa procedures for foreign workers.

International workers who travel abroad are not eligible to enter again in the United States if they don’t have valid visa stamps. The spread of the Coronavirus, among others, also led to long wait times for appointments during the COVID-19 pandemic, leaving a large number of workers stuck outside, thus bringing new difficulties for employers.

However, the new changes are expected to have a positive effect and further facilitate visa procedures for workers and employers.

In this regard, the director of government relations at the American Immigration Lawyers Association,  Shev Dalal-Dheini, while supporting the recent changes, said that the need for such a step to be taken became even more apparent with the delays in visa processing, after, according to her, a large number of people were left in limbo.

The Person in Specialty Visa, also known as an H-1B visa, permits US employers to bring international workers engaged in specific fields such as accountants, professors, IT specialists, lawyers, etc., to the US in order to work there and thus contribute in filling out labour shortages.

At the same time, L-1 Visa is a US temporary work visa which permits internationals to work in the US for a period of three months to five years.

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