Lester Kiewit finds out from Stefanie de Saude-Darbandi what the proposed new law means for foreign business Gauteng townships.

As part of plans to revitalize the economy, Gauteng economic development department and premier David Makhura’s policy unit have drafted a new law which seeks to bar foreign nationals from doing business in Gauteng Townships

Lester Kiewit speaks to immigration lawyer Stefanie de Saude-Darbandi for her thoughts on the story.

It's a pity that the government isn't available to give some comment because we need some light shed because this law that they want to pass contradicts and even conflicts with the immigration act

Stefanie de Saude-Darbandi, Immigration Lawyer

In terms of the Immigration Act, anyone who has a business or work visa is able to work.

Stefanie de Saude-Darbandi, Immigration Lawyer

What this bill is essentially saying is that if somebody in these townships has a business visa or work visa it is not going to be recognised.

www.samigration.com

The Western Cape provincial government has formally requested the introduction of a ‘remote working’ visa for South Africa.

In a letter addressed to both the minister of tourism and the minister of home affairs, the Western Cape’s provincial minister of finance and economic opportunities David Maynier said that the visa will allow international visitors to stay longer and work remotely while travelling in South Africa.

“Globally, many countries are competing to capture the market for the longer-stay tourist who can work online from anywhere in the world while earning and spending foreign currency in the country they are visiting,” it said.

“This is an important market right now, as this type of tourist is more resilient to the challenges that traditional tourism is facing given ongoing travel restrictions. Such tourists will also remain an important source of sustainable tourism long after the Covid-19 pandemic.”

“Introducing a remote working visa also makes business sense,” said Maynier. “It will attract a significant number of long-term, financially independent travellers to South Africa during a period of economic uncertainty.”

In the long term, remote workers are also more likely to invite their family and friends to visit in the future, he said.

“This could also have positive spin-offs for foreign direct investment, and the promotion of South African goods and services exports as travellers get to know and love all the great things about our country.”

Positive development

The introduction of a remote working visa was first proposed by Western Cape premier in his state of the province address in February.

Winde said that the Western Cape was looking at new ways to drive tourism to the province, and that one potential avenue is attracting ‘digital nomads’ through a new remote-working visa.

The premier noted that Cape Town was recently named on the list of the 50 best cities for remote working.

“These ‘digital nomads’ are a new kind of tourist, who will stay in our province for 3 months instead of 3 weeks, enjoying our tourism offer while working on their laptops,” he said.

“We have everything it takes to be the best remote working location in the world if we remove the red tape – and roll-out the red-carpet for these travellers.

“To do so, South Africa urgently needs to introduce a ‘Remote Working Visa’. Most leading tourism destinations in the world have one already, and we should have one too.”

Western Cape premier Alan Winde said that the new visa would be a great contribution to South Africa’s recovery, given the severe impact that Covid-19 has had on the tourism sector in South Africa.

“The Western Cape is a great place to live and to work and we are ready to welcome these visitors and provide them with a great place to explore while they work.”

www.samigration.com

South Africa's critical skills list includes a long list of engineering jobs. Photo: Getty Images

About 97% of listed and multinational companies in South Africa say engineers are indispensable to their business operations and often have to be recruited abroad. Yet government’s draft list of critical skills now contains only half as many engineering professions as it did six years ago.

Marisa Jacobs, executive director of work visa consultancy Xpatweb, which conducted the survey, says that chemical and electrical engineers, for example, were excluded from the department of home affairs’ new draft list.

The list was published in February after being updated for the first time since 2014.

Foreigners with skills on this list who want to come to work in South Africa can get a work visa much faster than those who are not. If your skill isn’t on the list, you may wait for up to six months longer for a work visa, says Jacobs.

The list contains skills that are important for the country’s strategic priorities, which are acute or may be in short supply in the future. It also contains skills that take a long time to develop.

Xpatweb, which helps companies recruit experts abroad, has been conducting surveys to collect real data among listed and multinational companies for the past five years on critical skills they are struggling to fill from the local market.

Jacobs says the latest survey, the largest to date, involved 220 respondents.

It shows that most respondents recruit foreigners for critical positions through LinkedIn (31%) and recruitment agencies (25%).

A total of 15% recruit from Europe, 14% from India and 13% from the UK, while 7% recruit largely in China and the US.

Jacobs said in a workshop this week that the survey shows that engineers, scientists, tradespeople (especially electricians), specialists in healthcare and accounting, as well as senior financial managers are among the positions that businesses in South Africa struggle the most to fill.

More than 80% of respondents are looking for engineers with three or more years of work experience, while 35% need engineers who have an honours degree.

Certain skills were re-included after the results of the survey became known and Xpatweb submitted comments on the draft list

On the new draft critical skills list, however, there are 22 fewer occupations in the category for engineers than there were on the 2014 list.

The 2014 list contained 41 occupations in the category, but now there are only 19 – 11 of which appear for the first time, Jacobs says.

Certain skills were re-included after the results of the survey became known and Xpatweb submitted comments on the draft list.

They include industrial engineer and technologist; engineering manager; mechanical engineering technologist; fitter and turner; registered nurse for child and family care, and for mental health; actuary; food and beverage scientist; and quantity surveyor.

Jacobs says media and marketing specialists, executives, information communication technology specialists and foreign language-speaking workers are also scarce locally.

The draft list does not provide at all for people who are proficient in foreign languages.

City Press reported earlier that this has implications for call centres. The greatest need is for French speakers, followed by those who speak Dutch and Mandarin.

According to Jacobs, companies also have a great need for CEOs, as well as executive operations and financial managers, but of these so-called C-suite skills, only “chief information officer” currently appears on the draft list.

She says the category “general manager”, one of the most popular visa categories under which companies can now bring in CEOs, has also been omitted.

Encouraging is the inclusion of eight new professions or skills in the accounting sector after they were identified as scarce skills by the first survey. These include accounting officer, financial accounting and forensic accounting, and tax expert.

Other visas will then have to be applied for and this process can take much longer

According to Jacobs, the business world still needs to provide its input on what it needs because the list has not yet been finalised. That will probably happen later this year.

Once it is finalised, foreign workers with skills that do not appear on the list will not be able to obtain a work visa swiftly, even if a company urgently needs their services.

Other visas will then have to be applied for and this process can take much longer, she says.

Jacobs advises companies to apply for the renewal of work visas for foreign employees whose skills are no longer on the new draft list. This will prevent them from being caught off-guard.

www.samigration.com

The permit services in terms of the Immigration Act will be rendered by the Department of Home Affairs as follows :

1. Permanent residence permits appeals applications with effect from 1 October 2021.
2. Proof of permanent residence permits  applications with effect from 1 October 2021;and
3. Permanent residence permits  applications with effect from January 2022.

Per Home Affairs proclamation and gazette -  30 June 2021 

www.samigration.com

There is a widely recognised dissonance between the progressive, inclusive vision of South Africa’s constitution and xenophobia experienced by foreign nationals across South Africa. It can be tempting to describe this tension as one between good, inclusive laws and bad, xenophobic citizens.

But my recent investigation into South Africa’s citizenship law reveals that this is far too simplistic an explanation. My research shows that reduced access to citizenship in South Africa is shaped at the legislative level as well as through government’s implementation strategies – or the lack thereof.

I argue that this trend reveals hidden agendas within the country’s government structures to what I call “shrink South Africa”.

This is not what the founders of a democratic South Africa envisaged. The 1995 South African Citizenship Act replaced apartheid legislation. The new law was drawn up in line with the country’s constitution, which provided for a common citizenship for all. It thus extensively widened the scope of free and equal citizenship to all citizens.

As a non-profit, we depend on your support

This initial post-apartheid legislation was generous in scope. It provided means to acquire – or reacquire – citizenship for those who had lost or failed to acquire their citizenship due to apartheid policy. Examples included some who had lived in exile, who were forced to travel illegally, migrant workers, or “homeland” residents.

In the intervening years the act has been amended three times – in 2004, 2007 and 2010. With a few notable exceptions, these amendments have systematically reduced access to citizenship.

What happened?

The shrinking

Consider the following three illustrative cases revealed in my study of South African citizenship law.

First, under the 1995 legislation, children born to at least one non-South African permanent resident were entitled to citizenship. Following the 2010 amendment such children are allowed to access citizenship only after reaching the age of majority if they have lived in the republic from the date of their birth. This makes a significant difference to their access to education, travel and other citizenship-based opportunities.

Second, restrictions were placed around residency requirements for naturalisation. These became significantly stricter after the 2010 amendment. Initially a person had to live in South Africa for at least four years in the eight years before applying for citizenship, with one of those years being directly before the application. Since the 2010 amendment, a person has to live in South Africa (as a permanent resident) continuously for five years directly before applying, with no absence longer than 90 days.

On top of this, the Department of Home Affairs regulations appear to further tighten this access by requiring a blanket ten-year residency requirement with no absence longer than 90 days. Although not explicit in the regulations, current public information suggests that this intends to incorporate the five years of residency required for permanent residence under the 2002 Immigration Act.

Third, the spousal route to citizenship has similarly been restricted. This happened when the law was changed to include an open-ended “prescribed period”. In current regulations this is interpreted as the same as non-spousal routes – that’s 10 years. This is a significant shift from the previous two years of marriage and residence (which could be concurrent).

These examples show how the law been changed to reduce access to becoming a South African citizen. They also illustrate the interplay between legislation and regulations to achieve the same end. Regulations are determined through parliamentary committees and the Department of Home Affairs.

In some cases, the law remains relatively open, but the regulations work against the spirit of this openness. A good example is South Africa’s celebrated statelessness exception to naturalisation requirements. Citizenship can be granted to individuals born in South Africa who do not have

the citizenship or nationality of any other country, or have no right to such citizenship or nationality.

The Department of Home Affairs still does not have a regulation to act on this exception. Simply put, if there is no form to complete or process to follow, it becomes impossible to apply.

Two years ago Lawyers for Human Rights won a successful court action to rectify this. But the regulations have still not been updated.

Another example of the space being reduced relates to children. Access to citizenship is deeply shaped by the regulations of the Births and Deaths Registration Act, requiring valid documentation. Children born to parents who do not have official South African identification documents or valid passports and visas can lose access to citizenship. This is despite the fact that legislation provides access for stateless children and children of non-permanent residents on reaching majority.

A further complication is that the current regulations entail that a child born to parents who aren’t married to each other can only be registered by the mother. Even if a child’s father is South African, or a legal permanent resident, the child might remain unregistered and thus unable to access citizenship. This is under legal challenge.

Lawyers for Human Rights, among others, do excellent work in challenging the Department of Home Affairs on many of these issues. Unfortunately, even successful court actions are at times implemented very slowly, or not at all. South African citizens and residents ought to respond to this tightening access. They should build on existing legal activism through political channels. A political response can reveal hidden agendas and reshape political will towards developing a more just citizenship regime in line with the spirit of the country’s constitution.

www.samigration.com