There is never a dull moment in the field of SA Immigration. It has been a very busy month in the immigration landscape with a number of developments both on a policy front, courts and the day to day immigration issues. When one is spoilt for choice it becomes very difficult to address all the issues so I have picked few topics to deal with in this issue. I have decide to condense my points on each subject so I will not be going into the gory details but should you want to know more please feel free to drop me an email and I will be happy to share my thoughts and give advice, which by the way is available free of charge.
Amendments to Immigration Regulations.
Before you all scurry to the nearest VFS to file your applications in haste in the hope to beat the Minister and the new regulations. I want to put you minds at ease on this issue. There are proposed amendments to the current immigration regulations but unlike the wholesale changes we saw in 2014 these amendments are more of tweaks to the current regime . The idea seems to be to address the gaps in the current regulations. A welcome change is the amendment of Regulation 3 dealing with Spouses. The amendment will see a distinction in the documents required in an application involving a married couple and that of a life partnership. The change will be that the requirement for the former will be the production of a marriage certificate and not affidavits and notarial contracts etc. This will mean that couples who are married no longer have to wait for 2 years before they can apply for the spouse visa.
The other addition is that the 2 year reporting requirement imposed on a holder of a Permanent resident permit in terms of the spouse category will be extended to holders of spouse visas as well. This is an obvious attempt to improve the policing of bogus relationships, a phenomenon highlighted in the Green Paper on International Migration. For the first time the regulations also address what happens when the spouse of a holder of a spouse visa passes on before the foreigner has been granted permanent residence. The DG may withdraw the visa. The use of the word “may” implies that he may or may not and that the holder will probably need to motivate why the visa should be withdrawn. It also means that where one feels the DG has failed exercise a proper discretion the courts can be approached for relief.
Other changes include amendments to the birth certificate requirements for minors traveling, the inclusion religious leaders and sound engineers on the possible candidates for a section11(1)(b)(iv) 3 years visitor’s visa. The duration of business visa is reduced to 3 years and we will see the Department of Labour playing a role in the process as well. There are also proposed amendments to section 27 Permanent residence requirements. We will provide a detailed analysis once the new regulations are passed. The Draft Regulations were open for comments so inevitable some of the proposed amendments may not make it into the final version.
Rejected! Challenges with visa applications
Rejected applications have become the order of the day to a point where conspiracies have begun to spring up. My favorite is that it’s a money making scheme because every time one sneezes at VFS it will cost R1350. Whilst I do not buy into the conspiracies it cannot be denied that rate of rejections versus approved applications is concerning. The reasons put forward move from being ridiculous to crazy and some reflect the absence of care on the part of the adjudicator. This would not be an issue if there was no financial implications.
When it comes to the critical skills visa it seems if you apply as a Risk Assessor you will only succeed if you hold and Actuarial Science degree. This cannot be more further from the truth. Ironically there is a Higher Education website on scarce skills that gives a clear distinction that the Actuaries and Risk Assessors are different. The cause of the pain is the use of the word “and between the two skills. DHA seems to believe the presence of the word indicates that the two professions are the same. That’s madness. If I say to you, Trevor and Peter, does that mean they are the same person? Closer to home The category of system Architects, Engineers and Managers in the BPO sector would mean that the Manager and Engineer are the same person. Come to think of it, if you look carefully at this it appears there are 3 different skills here.
On the note of the BPO it turns out there is a list of companies in this so called BPO industry. Please check this list before lodging the application. The CCMG and BPESA lists these companies and a company may subscribe to be listed. This is where the DHA checks and rejects.
Maths and Science Teachers – What to do next?
It seems that DHA does not agree with rest of us when we say these teachers are in short supply. The absence of Math and Science teachers from the critical skills list remains baffling. So if you are a teacher and holder quota work permit that is about to expire what should you do. The current solution is to approach the DHA for a waiver of the labour certificate requirement. But that process takes some time so it is important to start applying at least 4months before the visa expires. The other alternative is applying for the labour certificate however the process is equally tedious and must be started at least 6 months before hand. I have seen a circular from the Department of Basic Education on this and the gist of it is that you first have to get endorsement from this Department first before going to the Department of Labour. After that you go the Department of Home Affairs. From that perspective I would certainly prefer going for a waiver application to avoid all that red tape.
Study Visa tit bits
It’s almost that time of the year when SA Embassies are flooded by the new contingent of foreign students eager to start their next chapter in life. So I felt it appropriate to spend some time on this issue. The most important thing to remember here is that not every learning institution will lead to you being granted a study visa. The Immigration Act is very specific on what constitutes a learning institution in terms of Act and it is important to check if the relevant college is appropriately registered. The ones who need to be extra vigilant are those enrolled at private FET colleges. Before paying your fees please ask for the certificate of registration with the Department of Higher Education. If there is no certificate, then probably that school does not meet the definition of a learning institution.
On the subject of the #feesmustfall movement some good news for all those students with study visas set to expire on the 31st of December 2016. The Minister has extended all these visas to the 31st of March 2017. This means that you can remain or gain entry into the country on your study visa until 31st March 2017 to complete your academic courses without having to worry about the visa issues.
Final Remarks
In conclusion I thought I should weigh in on this issue of delays at the airport due to the biometric capturing and the delays caused. I think it is important to note that this is legislative requirement. Section 9 (3)(d) read with regulation 6(3) contains the biometric examination requirement. So the DHA is simply carrying out what the Act provides for. New systems are being rolled at all ports of entries so that this requirement is complied with. Like any change you are bound to face resistance to change but the biometrics are here and I am sure they are here to stay. Other countries have far stringent processes at their ports meant to deter unwanted elements from coming in to the country or leaving. I believe the country is made safer by such interventions, when they work that is, and we should accept this change and plan for it better. This will mean checking in earlier and budgeting for more time on arrival and between transit flights. This change will also mean that where one is sanctioned on the one passport they can no longer simply change passports and re-enter the country, your finger print does not change with the passport unfortunately.
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Munyaradzi Nkomo
Lead immigration specialist at Strategies Migration Services SA
Email: munya@immigrationspecialists.co.za
Cell: +2774 337 0269
tel : +2711 064 4875
www.immigrationspecialists.co.za