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.