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What about the SA Immigration Act?
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SA Immigration Act
The Immigration Act number 13 of 2002 came into operation on the 7th April 2003 and heralded a degree of certainty in terms of the various categories of temporary and permanent residence in South Africa for the first time. It also represented an Act of Parliament upon which all interested parties and stakeholders had been give an opportunuty to give input. Much of this input has been included in the the current Act and Regulations.
The Immigration Act Amendment Bill was signed into law by the President of South Africa on the 22nd October 2004 but will not come into operation until the draft new regulations in terms of the Immigration Act and its Amendment have been gazetted into operation. There is still at an administrative and public participation process which will have to be followed before this can happen and in addition the draft regulations still have to be forwarded to the Immigration Advisory Board "the IAB" for that body to advise the Minister on the final drafts.
The draft regulations will then be published in the final format and hopefully approved by the Minister and gazetted into operation. This would have to take place simultaneously with the coming into operation of the Immigration Amendment Act.
One of the main purposes of the draft Immigration Amendment Act and Regulations is to bring about a degree of certainty in the immigration law and regulatory sphere. It is certainly hoped that this goal can be achieved.
Full particularity will be carried in updates of this article as and when the information comes to hand.
The most important categories of permits under the current Immigration Act and Regulation are set out hereunder together with comment, wherever possible, of what can be expected in terms of the Immigration Amendment Act and the new Regulations:
Temporary Residence Permits
Visitors Permit (Section 11 of the Act) :
Cannot exceed a period of three months;
Section 11(1)((b)(ii) however provides for issue of a permit for a period not to exceed three years to a foreigner who can prove available resources in South Africa to sustain themselves (to the satisfaction of the Department of Home Affairs) and who is in South Africa and engaged in activities such as academic sabbaticals, voluntary or charitable activities, research or “other prescribed activities and cases”. This last category opens up the door for long term visitors permits to be granted in appropriate cases for up to three years,he so called ”long term visitors permit”.
All applications to extend a permit must be made timeously and at least thirty days prior to expiry of the current permit;
Work Permits (Section 19 of the Act)
Various categories of temporary work permit are provided for in the Immigration Act. All of these are linked to the applicant having an offer of employment and the required skills, qualifications and experience for the position. An overriding factor in all of this type of application is that the prospective employer must show what efforts have first been made to secure the services of a South African Resident before a foreign national can be employed. This is generally achieved by proving an advertisement in the national printed media in respect of the position being offered him by way of a report from the regional Department of Labour. In the quota permit, intracompany transfer and the category where the applicant is in a spousal relationship with a South African citizen , the advertisement requirements are dispensed of. Applications in this category must be lodged at the South African High Commission or Embassy closest to where the applicant normally resides all should be processed at the Department of Home Affairs regional office closest to where the applicant will reside and work, if the applicant is already in South Africa It is advisable to consult with and have an assesment of viability done by a specialist immigration attorney before embarking on an application.
A permanent residence permit in the “worker” category is also possible but can only be made contingent upon a job offer that is permanent, in line with the applicant’s skills, experience and qualifications, which must also be inherent requirements of the job being offered to that applicant. Applications in this category should be lodged at the South African High Commission or Embassy closest to where the applicant resides or works.
Retired Persons Permit: (Section 20 of the Act)
A temporary residence permit in this category may be granted for periods exceeding three months and up to four years providing that an applicant can show that they have the required financial resources to sustain and support themselves during their stay in South Africa and in specific either a pension or lifelong retirement annuity or a “retirement account” providing the required income for this purpose.
A qualified dispensation to” work” to a limited degree in respect of retirees exists in the current regulations. The new regulations which will come into force shortly will in all likelihood make provision for a further relaxation of this requirement and may even lift the restrictions on “work” .Off neccesity this may require the retiree to obtain a work permit to be endorsed onto their retired persons permit.
Retirees must be able to show that their pensions or annuities will deliver to them an income of not less than ZAR 20,000-00 per month readily transferable to South Africa, alternatively a “retirement account” of not less than ZAR12 Million delivering an income of not less than ZAR 15,000-00 per month (The new regulations about to come into operation will in all likelihood provide for a relaxation of the qualifying monthly income amount and will in all likelihood also allow for the equivalent rental value of property owned by the retiree to be factored into the income amount. The condition being that the retiree must be living on the property, however it must be remembered that this comment must not be acted upon and till the Immigration Amendment Act has been promulgated in law and there is certainty on this aspect).
In the permanent residence permit category it is an additional requirement that the applicant show that the rights they have to the pension/annuity or “retirement account” are lifelong in terms of duration.
Note: Under the current Immigration Act there is a requirement to have a South African Chartered Accountant certify the financial aspects. The Immigration Amendment Act will do away with this requirement in most categories of residence and replace it with the requirement that an applicant must prove “to the satisfaction of the Director General” that they have adequate resources.
Business permit category: (Section 15 of the Act)
A temporary residence permit (known as the "own business/self-employment" category under the old immigration laws) may be obtained for a period of up to two years from the date of the issuance of the permit and which is renewable for further to your periods.
In order to succeed in this category a potential immigrant must meet the capitalisation requirements of at least ZAR 2.5 million to be invested as part of the book value of the business. This amount must be sourced from abroad. Upon application to the Department of Home Affairs May, acting upon recommendation from the Department of Trade and Industry may reduce or even the waive the capitalisation requirement.
In addition to the capitalisation requirement a potential immigrant intending to apply in this category, must also prove one of the following:
A business track record to prove entrepreneurial skill.
Prove that the business contributes to the geographical spread of economic activity.
Proof that at least five South African citizens or residencts will be employed.
This prove that the business in question is either in the information technology, clothing and textiles, chemicals and biotecnology or agro-processing, tourism, crafts or automotive and transport industries.
The export potential of the business; or
Calls for or involves a transfer of technology not previously generally available in South Africa.
A sustainable and viable business plan, certified by a South African Chartered Accountant must be filed with the Department of Trade and Industry, requesting a recommendation and must also be included with documentation lodged with the application automatically. This business plan must show short to medium term sustainability and viability.
Applications in the business permit category should be lodged at the nearest South African consular office to where the applicant resides or works.
A permanent residence application in the business permit category must comply with all of the above criteria and obviously must also show continued long-term sustainability and viability of the business. |
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