New bill looks set to create serious challenges for skilled foreigners already working in S

Thousands of skilled people working in SA could face visa renewal challenges, or even be forced to leave the country, if their job descriptions have been cut from the latest SA critical skills list, which has just been released for public comment.

Despite warnings from experts in recent years the new bill on international migration, and the new critical skills list, look set to block foreign direct investment and skills flows to the country and create serious challenges for skilled foreigners already working in SA.

As the first amendment since 2014, the new list is long overdue. However, there is cause for concern that the first new list in more than six years is dramatically shorter than the list in force, with only 126 categories. If the list is approved in its current state foreigners whose skills are no longer included may be unable to renew their visas and find themselves and their families being forced to leave.

Designations that have been eliminated include agricultural scientists, corporate GMs, telecommunications & ICT solutions architects, security network specialists, database specialists, foreign language speakers for specialist language & technical sales support, a broad range of specialist engineers, biochemists, biological and environmental scientists, water resource scientists, astronomers and physicists. Doctoral qualifications acquired abroad have also been removed from the list, raising concerns about the new list’s impacts on academia and cross-border skills transfer and knowledge sharing.

It should also be noted that this new list does not match the department of higher education & training’s list of occupations in high demand, despite the two lists ostensibly being aimed at the same goal: the identification of skills SA needs but lacks. For example, the department’s list includes high-demand occupations such as psychologists, lawyers, social workers and dentists.

Importantly, the new list requires virtually all applicants to have academic qualifications, but does not make provision for work experience. This means the doors to the country are in effect shut to experienced businesspeople, foreigners with much-needed foreign language skills to support the business process outsourcing sector and enable international diplomacy and trade, and those working in new IT fields for which there are few formal qualifications.

In terms of the Immigration Act critical skills are those essential for the country but that SA lacks in the necessary numbers. Because of their desirable status, critical skills visa holders may bring their families with them, and they are explicitly not restricted to a single employer. In practice, those who enter the country on critical skills work visas now appear to be tied to particular employers or are only issued with visas valid for 12 months, requiring the holder to resubmit a full new application with all the required documentation 10 months later, two months before the expiry period.

So people with the critical skills SA needs must go through the burden and costs again to receive a visa that may now be valid for five years but will still be tied to one particular employer. In theory, the visa should be issued for a maximum period of five years without any specific employer annotated, regardless of whether an employment contract is submitted with the application. In practice this will make the critical skills visa little different from the usual work visa, which runs contrary to the legislature’s intention in creating the critical skills visa regime as set out in the act, regulations and skills list.

The aims of the act in providing for critical skills visas are to attract to the country rare and desirable skills that are not commonly available among the SA populace. In short, these visa holders are a benefit to SA and are not taking any South African’s job. In spite of this and contrary to input and contributions from a wide range of stakeholders, the new critical skills list still appears to be unnecessarily restrictive. This reinforces earlier concerns that the inputs by business and industry have been ignored in favour of those by the departments of home affairs, employment & labour and higher education & training.

A balance needs to be achieved between directly creating employment for South Africans and encouraging skilled people and business investors to enter the country, where they can create jobs, participate in skills transfer and help grow the economy. However, this will all be meaningless if these applications are not processed in terms of the Immigration Act and the regulations by properly trained administrative officers.

www.samigration.com

Upon application to the Minister of Home Affairs, the Minister may under terms and conditions determined by him or her allow distinguished visitors or members of his/her family to be administered and sojourn in South Africa and or waive any prescribed (regulatory) requirements for good cause and/or grant any foreigner or category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist justifying such a decision.

S 31(2)(b) provides that the Minister may, upon application, grant a foreigner or a category of foreigners the right of permanent residence for a specified or unspecified period, when special circumstances exist justifying such a decision. The Minister may also exclude a foreigner or a group of ‘identified’ foreigners from such dispensation and may, for good cause, withdraw such right(s) from a foreigner or a category of foreigners. S 31(2)(c) provides that the Minister may for ‘good cause’ waive any prescribed requirement or form, in respect of any such application by a foreigner for the grant of permanent residence.

There are a myriad of circumstances that may arise wherein an applicant may apply to the Minister of Home Affairs to grant certain concessions in terms of section 31(2)(b) or under 31(2)(c) under the Immigration Act (the “Act”) that may pertain either to the acquisition of permanent residence “when special circumstances exist” or “for good cause, waive any prescribed requirement or form”.

The Minister is empowered in terms of the Immigration Act to “waive” any regulatory requirement or form.  A foreigner may apply for such waiver on the basis that “good cause” exists for the granting of such waiver.

The term “good cause” has never been defined, either in terms of legislation or by the South African judiciary.  In practical terms an applicant must demonstrate that there is compelling justification for the waiving of a regulatory requirement or form, and if the Department of Home Affairs (on behalf of the Minister) determines that a violation of a constitutional right, or an irrational consequence, will arise by a refusal to grant such waiver, waivers are normally granted.

A typical scenario necessitating a waiver under section 31(2)(c) would be where a specific requirement or form is applied to the Minister to be dispensed with.

Here are a few examples of waiver applications:

• A foreigner, sojourning in South Africa, has in the past submitted police clearance certificates from his country of residence of more than 12 months since his 18^th One of those countries is Saudi Arabia.  Since his last submission to the Department of Home Affairs of his Saudi Arabian police clearance certificate he has never returned to such country.  He now intends to apply for permanent residence in South Africa and will, in terms of Immigration Regulation 23(2)(e) require a police clearance certificate from Saudi Arabia.  Since he will not be able to acquire a new Saudi Arabian police clearance certificate without, at great expense and inconvenience, returning to that country physically to obtain one, he applies for a waiver from the aforementioned regulatory requirement in relation to a Nigerian ,USA or Saudi Arabia police clearance certificate if perhaps you have not lived there for 10 to 15 years and would have difficulty to obtain same .  Such applications have been largely successful.
• A refugee sojourning in South Africa in terms of the Refugees Act wishes to apply for a critical skills work visa in terms of section 19(4) of the Immigration Act. In terms of Ahmed and Others v Minister of Home Affairs and Another [2018], ZACC 39  an asylum seeker or refugee sojourning in South Africa must first apply for a waiver from the requirements of Immigration Regulation 9, which includes the requirement that any temporary residence visa applicant must submit his or her application in person to a foreign South African mission where such applicant ordinarily resides or holds citizenship.  Once the waiver from such requirement is granted only then may the asylum seeker or refugee proceed to submit an application for a temporary residence visa application in South Africa.  These waivers must ordinarily be granted otherwise a ruling by the Constitutional Court will be violated.

A regulatory waiver application made in South Africa may take anywhere between 4 – 7 months on average to be processed and adjudicated by the Department of Home Affairs.  In order to apply for a waiver the applicant must be in possession of a valid refugee or immigration status.

Mulowayi v Minister of Home Affairs is an appeal to the South African Constitutional Court from a decision of the High Court of South Africa dealing with the validity of a regulation amending the South African Citizenship Act 2010 ¹.

The legal issue to be determined by the Constitutional Court was on a narrow technical point.  The reason I chose to write about this case is because it touches on wider issues arising from South Africa’s citizenship regime — especially as they affect stateless people.

The statelessness question in Mulowayi 

In this case, the third applicant, Gaddiel, who is a child, was born in South Africa without a nationality.  He is stateless.  Gaddiel should have been substantively protected as a stateless person by provisions in South Africa’s Citizenship Act ².  The Act grants citizenship to a person who is not a citizen or national of any other country or has no right to such citizenship and who has been registered in accordance with relevant South African laws.

However, this substantive protection is only attainable if Gaddiel undertakes further litigation challenging the failure of the South African government to enact a process for Gaddiel to make an application under the Citizenship Act.  The lack of an application process under the statelessness provisions of the Citizenship Act had already been raised in an earlier case, Minister of Home Affairs v DGLR [2016] ³.  Despite the decision in DGLR, the Department of Home Affairs has taken no steps to remedy the omission.

The story of the Mulowayi family, and especially their son, Gaddiel, demonstrates the challenges so many stateless people face navigating complex administrative processes just to get access to basic rights that should already be available to them.

Statelessness in South Africa

I have written about the challenges faced by children in South Africa before arguing, as many rights groups have done, that legal identity should not be conditional on the status of the child’s parents ⁴.  The risk of statelessness in South Africa, especially to children, increased when South African authorities sought to limit those eligible to be registered at birth.  Children whose parents are foreign nationals and have no right to permanent residence in South Africa could not have their birth registered meaning they would struggle to establish their legal identity ⁵.  Denying children a birth certificate in a state where birth registration is so closely link to nationality is a serious problem.   It will impact not only those children being denied a certificate today, but future generations too ⁶.

Lack of a legal identity is one reason why so many children are now at risk of statelessness.  Another, aptly illustrated by Gaddiel Mulowayi’s case, is the lack of administrative process and administrative justice that allows those who are stateless to rely on existing laws offering those who are stateless, or at risk of statelessness, much needed protection. Gaddiel should be able to rely on South Africa’s well drafted and international law compliant provisions to acquire South African citizenship.  Yet the process by which he can do that has not been put in place.  Liesl Miller, a South African attorney who heads up the statelessness project at Lawyers for Human Rights sums up the problem of statelessness in South Africa:

www.samigration.com

Politcal parties raised concern of the problem of long queues where often people are turned away because the system is offline.

Minister Aaron Motsoaledi came under fire from some opposition parties in the National Assembly for what they say is the chaotic state of the Home Affairs department.

Political parties raised concern about the problem of long queues where often people are turned away because the system is offline.

During the department’s budget vote debate, parties also questioned why the department has still not introduced an online appointment system.

Inkatha Freedom Party (IFP) Liezl van der Merwe says, “Imagine waking up at 4 am using your last bit of money on transport to go to your local Home Affairs office hoping that today you’ll be able to get an identity document (ID) because that’s what stands between you and a job. It is what stands between you and providing for your family. What stands between you and a brighter future. Then consider the mother who travels to a Home Affairs office in search of a birth certificate that document stands between her and a Sassa grant without which she cannot feed her newborn baby but for many visiting a Home Affairs office in taking a day off work to queue for hours on End only to be told to come back tomorrow because the systems are offline again systems that are perpetually offline have become synonymous with this department.”

Democratic Alliance (DA) Angel Khanyile says, “The issue of long shoes in different parts of the country and by various members of the portfolio committee had been raised on numerous occasions yet the situation remains the same of this country spent days and weeks without being attended to Andrews days off work because the department has not introduced the appointment system.”

Economic Freedom Fighters (EFF) Mgcini Tshwaku illustrates this point by quoting KwaZulu Natal Premier Sihle Zikalala following a recent visit to a Home Affairs Office.

Zikalala said, “There are people who are arriving at Home Affairs at 4:00 in the morning and the home Affairs open at 10:00 where it opens at 8:00 and then people start working at 10:00 and up until 12 and then after that, you find that they’ll system are offline they’ll go to lunch and you will not know what is actually happening. What is happening right now is a crisis everywhere…”

“People are crying about the system being online not being helped up on time by the Home Affairs. So in that budget, we did not see a plan or money allocated to saying that is what we’re going to make sure that none of which I need the money so that you are ensuring that these queues and also the systems which are offline at the Home Affairs are going to be eradicated,” Tshwaku explains.

Motsoaledi acknowledged the problem and assured members that they are tackling it.

“When you listen to members of the opposition parties talking about the documentation you’d think everything in Home Affairs has. I mean all the offices are closed and there’s no work. The challenge about down time which we experience from SITA. We have mentioned it in the portfolio committee. We have got a plan and a program to deal with that. It also disappoints us I must say and I’m not going to hide it,” Motsoaledi says.

www.samigration.com

South African banks are eager to expand the availability of E-Home Affairs in South Africa — they are just waiting for the Department of Home Affairs to sign a partnership agreement before they can roll out the service to more branches.

This is according to Nedbank, which was answering questions from MyBroadband regarding the delays it faced in rolling out new E-Home Affairs branches during 2020.

At the start of 2020 — before South Africa recorded its first case of COVID-19 — Absa, FNB, Nedbank, and Standard Bank revealed their plans to expand their E-Home Affairs footprint substantially by the end of the year.

However, only Standard Bank was able to add E-Home Affairs capabilities to some of its branches during the year.

Nedbank told MyBroadband that its roll-out plans were affected by COVID-19, the National State of Disaster and the ensuing lockdowns, but said that the pandemic was only part of the reason for the delays.

“The delays are largely as a result of the finalisation of the partnership agreement with the Department of Home Affairs, and we have not been able to open any more [E-Home Affairs] offices in the last year aside from those already in place,” a spokesperson for Nedbank stated.

Nedbank said it intends to expand its E-Home Affairs offering, but it is waiting on the Department.

“There is big dependency on the Department of Home Affairs finalising a partnership agreement with participating banks that will see banks offering this service as part of their own operating models — using their own staff,” Nedbank said.

“Currently, the [Home Affairs] appointed staff manage and operate dedicated areas within participating banks where they process appointments that are booked via the DHA website.”

A glaring gap in the E-Home Affairs network is the fact that one of South Africa’s largest banks, Capitec, does not offer the service.

The E-Home Affairs system only allows you to book appointments and collect your documents from a bank where you are a client.

If your bank does not participate in the programme, or if your bank does not have an E-Home Affairs branch near you, then you will have to book your biometric data capture appointment at the best available Home Affairs office.

MyBroadband asked South Africa’s big five banks and the Department of Home Affairs why the system was designed this way.

“This decision was informed by the Department of Home Affairs,” Nedbank told MyBroadband.

“This is how the appointment booking process is set up on the [E-Home Affairs] website. It’s the same process for all banks and ensures that it does not create a competitive advantage for any one bank.”

Standard Bank told MyBroadband that this was an agreement between all banks at the time when the e-Channel proof-of-concept — which ultimately became E-Home Affairs — launched in 2015.

FNB didn’t answer the question directly, but said that the E-Home Affairs system has become an essential service that has issued over 251,000 passports and smart IDs through its branches.

“We believe that the consistent expansion of this essential service will provide more customers with convenience by avoiding long queues when applying for their smart IDs and passports,” said the CEO of FNB Points of Presence, Lee-Anne van Zyl.

Absa declined to comment and referred questions to Home Affairs, while Home Affairs and Capitec did not respond to requests for comment by the time of publication.

However, Capitec previously told MyBroadband that it has no plans to add Home Affairs service desks, as it has smaller optimised premises to help keep its fees as low as possible.

www.samigration.com