South Africa: Concessions Granted Due to Processing Delays of Long-Term Visa Applications

29 June 2022 – Sa Migration

At a Glance

• The Department of Home Affairs is providing an automatic extension of status until 30 September 2022, for applicants currently in South Africa with pending visas and waivers, due to processing delays in adjudicating long-term visa applications.
• The processing delays are a result of a measure put in place in January, where the Department of Home Affairs required all long-term visa applications to be adjudicated in Pretoria, instead of at the South African consular posts. Due to understaffing, there is now a backlog of applications.
• Employers should ensure that they plan their employees’ start dates at least six months in advance to accommodate the lengthier processing times to meet their projected assignments or local employment start dates.

The situation

The Department of Home Affairs (DHA) is providing an automatic extension of status for applicants currently in South Africa with pending visas and waivers due to processing delays in adjudicating long-term visa applications.

A closer look

• Pending waiver applications. Foreign nationals with pending waiver applications who are currently in South Africa have been granted an automatic temporary extension of their status until 30 September 2022, during which time the DHA anticipates adjudicating their applications.
• Approval. If the foreign national receives an approval by this date, they can proceed to apply for an appropriate visa.
• Denial. If the foreign national receives a denial by this date, they must depart South Africa to avoid being declared undesirable for overstaying their status.
• Pending visa applications.  Foreign nationals with pending visa applications who are currently in South Africa have been granted an automatic temporary extension of their status until 30 September 2022, during which time the DHA anticipates adjudicating their applications.
• Approval. If the foreign national receives an approval by this date, they can continue to reside in South Africa.
• Denial. If the foreign national receives a denial by this date, they can appeal their application within the prescribed timeline or depart to avoid being declared undesirable for overstaying their status. These foreign nationals can also abandon their application and depart from South Africa without being declared undesirable on or before 30 September 2022.
• Visa-exempt nationals. Visa-exempt foreign nationals with pending waiver or visa applications who seek to travel outside of South Africa before 30 September 2022 can present their Visa Facilitation Services (VFS) receipts on their return to South Africa for re-admission.
• Visa-required nationals. Visa-required foreign nationals with pending waiver or visa applications who seek to travel outside of South Africa before 30 September 2022 must obtain a visa (showing proof of their VFS receipt as part of the supporting documents for the application) to re-enter South Africa. They will not be subject to delays in obtaining this visa since consulates can issue visas for durations shorter than 90 days which the foreign national can then extend in South Africa.
• Processing times. Processing times have increased from the usual four to eight weeks to an estimated minimum of 16 weeks.

www.samigration.com

Immigration-related permits: Why Motsoaledi is 'jittery' about releasing 'sensitive' report to MPs

News 24 – 29 June 2022

• A task team report involving the issuing of permits at the home affairs department is "sensitive", according to Aaron Motsoaledi.
• He is "jittery" about distributing the report to the committee before it is presented to them.
• The task team investigated several immigration-related permits.

Home Affairs Minister Aaron Motsoaledi is "jittery" about releasing a "sensitive" report to MPs before the information is presented to them.

The report is in relation to a task team's investigation into the home affairs department's issuance of permits.

The Portfolio Committee on Home Affairs was scheduled to be briefed on this report on Tuesday, but at the 11th hour, Motsoaledi asked for a postponement.

MPs weren't too pleased, but agreed to postpone the briefing until 8 July.

"Honourable members, I am as anxious as you for the report to come out because, indeed, the report is ready. There is no other reason that we are delaying it, except that this was an investigative report, by investigators. It would be remiss for me to try and make myself an investigator and bring it to you," Motsoaledi told the committee.

"The people who are not here are not officials from the department; it has got nothing to do with officials from the department. But they're outside people doing the investigation, who we could not get today, for which I profusely apologise."

Motsoaledi said he would do everything possible to have the task team members at the briefing on 8 July.

"But these members are high-powered people. Some of them have since been called to the bench to act, and they are not easily available. But I will make sure that I bring a minimum number of those without whom the report cannot be presented."

DA MP Angel Khanyile and IFP MP Liezl van der Merwe asked that committee members receive the report as soon as possible to prepare for the briefing.

Motsoaledi said it was in the committee's hands, but he had his reservations.

He said the report was of a "sensitive nature", and previously the committee allowed him not to send reports of a similar nature to the MPs before it was presented to the committee.

"To distribute it here, electronically, I'm a jittery about it," Motsoaledi said.

The chairperson of the committee, Mosa Chabane, said he would discuss the matter with MPs and legal services, and then advise Motsoaledi on their decision.

Motsoaledi appointed the task team in March last year to review the permits issued by his department.

At the time, Motsoaledi said he identified the need to review the permits after realising a trend emerging from the outcomes of cases involving prominent people investigated by the department's Counter Corruption Unit.

The unit investigates wrongdoing by departmental officials.

"Over the years, the Counter Corruption Unit has established that 66%, or nearly two out of every three reported cases, involved permitting. The allegations are reported by different whistleblowers, using different avenues to reach the Counter Corruption unit," he said in a statement.

"In November 2020, during a high powered investigation, I was alarmed when 14 members of the permitting section signed a petition demanding that the Counter Corruption Unit should stop investigating their errors. This admission strengthened my resolve to have a more transparent permit issuance regime."

The task team was established to review all permits issued since 2004 – the year in which the Immigration Act came into operation – in the following categories:

• Permanent Residence Permits (PRP), which are just a step away from citizenship;
• Corporate visas, especially in the mining sector;
• Business visa;
• Professional critical skills visa;
• Retired persons visa;
• Citizenship by naturalisation; and
• Study visa.

The task team is chaired by former top civil servant, Cassius Lubisi, and will include advocate Sesi Baloyi, forensic investigations specialist Peter Bishop, Kathleen Dlepu - the chair of the Legal Services Council - and Professor Somadoda Fikeni.

www.samigration.com

Home Affairs vows to crackdown on back-door granting of visas, permits

News24 – 29 June 2022

• Home Affairs Minister Aaron Motsoaledi is reviewing some of the permits which were granted irregularly over the years. 
• The Department of Home Affairs says the minister will leave no stone unturned in uncovering the "dubious" visas, permits and special citizenships that were irregularly granted.  
• The department says Motsoaledi will "unpack the full details of his intervention" in the coming days.

The Department of Home Affairs says it will leave no stone unturned in uncovering "dubious" visas and permits, such as permanent residence and special citizenships, which were granted irregularly. 

Home Affairs Minister Aaron Motsoaledi had resolved to review some of those permits that were issued over the years, especially permanent residence visas, the department said.  

It added the decision was informed by a trend emerging from the outcome of numerous investigations it had undertaken over the past two years, especially those involving prominent people. 

The announcement came after Motsoaledi's interview with SAfm's Bongi Gwala in which he said Enlightened Christian Gathering leader Shepherd Bushiri and his wife, Mary, were in South Africa illegally. He added the couple had entered South Africa for the first time on 6 September 2009 at the Beitbridge border post and were issued with visitors' visas.

"We don't stop people from visiting our country. Visitors' visas have a time frame - you can stay for 90 days or 30 days … because you're a visitor," Motsoaledi said at the time.

However, while Bushiri was in South Africa in 2014, 2015 and 2016, he registered companies with the Companies and Intellectual Property Commission, it emerged.

Motsoaledi said this was not allowed in terms of the conditions of the visitor's visa.

He said in 2012, Mary had entered the country through the OR Tambo International Airport, where she produced an alleged fraudulent permanent resident's permit, which was issued on 1 February 1997.  

"Now, if you came to South Africa for the first time on 6 September 2009, how can you already have a permanent residency dating 1997?"

However, the North Gauteng High Court in Pretoria suspended the department's permanent residence notice against Bushiri and his wife until they pleaded in their criminal trial, City Press reported.

The couple has since fled South Africa.

On Wednesday, the department said: "In the coming days, the minister will unpack the full details of his intervention which he decided on late last year.

"The department will leave no stone unturned in uncovering dubious visas and permits, such as permanent residence and special citizenships, which were granted irregularly."

Meanwhile, Motsoaledi welcomed acting Public Protector Kholeka Gcaleka's report on the implementation of the Citizenship Act.

"As such, the minister has instructed the director-general of the department to start preparing the action plan which should be submitted to the Public Protector indicating the timelines of implementing the recommendations of the Public Protector," the department said.

"Likewise, the minister will submit his own action plan as directed by the Public Protector."

On Monday, the Public Protector's office ordered the director-general of home affairs to take action against officials involved in the naturalisation of Ajay Gupta and his family for their failure to exercise due diligence by verifying the accuracy of the information contained in the motivation for early naturalisation.

Gcaleka had investigated an alleged violation of the Executives Members' Ethics Code and SA Citizenship Act by former home affairs minister Malusi Gigaba.News24 previously reported that in 2018, it emerged Gigaba had approved the early naturalisation of Ajay Gupta's family despite him refusing to let go of his Indian citizenship. 

Gigaba had on a number of occasions publicly stated Atul Gupta was not a South African citizen. He then corrected himself and said Atul was a citizen, and it was Ajay Gupta who had not been naturalised.

Gcaleka's reported stated Gigaba had exercised his discretion and did not abuse his power in the process. She, however, found him in breach of the Executive Members' Ethics Code with regards to him failing to table the names in Parliament of persons who were granted South African citizenship under exceptional circumstances

www.samigration.com

New quotas to limit hiring of foreigners in South Africa: minister

Businesstech - 28 June 2022

Employment and Labour minister Thulas Nxesi says his department is in the process of finalising two new documents which will tighten employment laws, including limitations on the hiring of foreigners.

Nxesi was responding to complaints by truck drivers this week which led to a major blockage of the N3 highway. One of the key complaints raised by the drivers is that jobs are being taken by both legal and illegal foreign workers.

One of the key ways that government plans to address this is through the proposed National Labour Migration Policy, Nxesi said. He noted that the policy aims to achieve a balance across several areas, including:

• The first is to address South Africans’ expectations regarding access to work opportunities, given worsening unemployment and the perception that foreign nationals are distorting labour market access. The NLMP, together with proposed legislation, will introduce quotas on the total number of documented foreign nationals with work visas that can be employed in major economic sectors such as Agriculture, Hospitality and Tourism, Construction, etc.

• The NLMP will be complemented by small business interventions and enforcement of a list of sectors where foreign nationals cannot be allocated business visas and amendments to the Small Business Act to limit foreign nationals establishing SMMEs and trading in some sectors of the economy.

• The Department of Home Affairs is reviewing current legislation and strengthening the Border Management Authority to secure porous borders and to allow for the orderly movement of people and other nationals through ports of entry only.

• Government plans to ramp up inspections to enforce existing labour and immigration legislation.

Employment Services Amendment Bill

Nxesi said the National Labour Migration Policy goes hand in hand with the proposed Employment Services Amendment Bill, which provide the legal basis to regulate the extent to which employers can employ foreign nationals in their establishments while protecting the rights of migrants.

The proposed amendments to the Employment Services Act aim to limit the extent to which employers can employ the number of foreign nationals in possession of a valid work visa in their employment,” he said.

It will also place several obligations on an employer employing foreign workers, including:

• Only employ foreign nationals entitled to work in terms of the Immigration Act, the Refugees Act, or any other provision;
• Ascertain the foreign national is entitled to work in the Republic in the relevant position;
• Satisfy themselves that there are no South Africans with the requisite skills to fill the vacancy;
• Prepare a skills transfer plan, where appropriate;
• Employ foreign nationals on the same terms as local workers; and
• Retain copies of relevant documentation

www.samigration.com

Can I get permanent residency if my father has a South African ID?

News24 – 28 June 2022

You are only entitled to apply for permanent residence based on your father having permanent residence if you are under 21.

Can I get permanent residency if my parent does, and I have lived in SA for more than five years?

The short answer

Yes, if you are a dependent of a permanent residence holder and are aged under 21 years. But there is a massive backlog at Home Affairs.

The whole question

Dear Reader

Both my parents are from Mozambique, but my father has a South African ID because he has been here for more than 25 years. I was born in Mozambique but I have lived in South Africa since I started school.

I want to apply for an ID but Home Affairs said I must apply for permanent residency first, which has a waiting period of five years.

Can it be allowed if I have proof that I have been here for more than five years?

The long answer

Unfortunately, in terms of Section 26 (c) of the Immigration Act, it seems that you are only entitled to apply for permanent residence (direct residence) on the basis of your father having permanent residence and you being his dependent, if you are under 21 years.

And, as you have pointed out, this could take five years, given the backlog of applications for permanent residence at Home Affairs.

As you probably know, Home Affairs closed down all applications for permanent residence at the beginning of the pandemic in 2020, and only re-opened applications in January 2022. They have an estimated 50,000 applications in backlog.

As not having an ID is a very serious deprivation, it may be worth consulting with organisations that have had plenty of experience in dealing with Home Affairs, and seeing if they can suggest anything that might help to speed up the process.

www.samigration.com