Immigration Law Update

The start of 2022 has brought significant developments (and proposed changes) in immigration law. Specifically, and of importance for employers hiring foreign nationals, the Minister of Home Affairs on 2 February published a new critical skills list under the Immigration Act, 13 of 2002 (Immigration Act). In addition, on 28 February, the Minister of Employment and Labour published the draft National Labour Migration Policy (Draft Policy) and Employment Services Amendment Bill (amending the current Employment Services Act, 4 of 2014 (ESA)) (Draft Bill) for public comment. Interested parties have 90 days from publication of the Draft Policy and Bill to submit written comments to the Department of Employment and Labour (DEL). We unpack below the new critical skills list, the Draft Policy and the Draft Bill (and their implications for both employers and employees in South Africa). We also include an update on Zimbabwean exemptions granted to Zimbabwean nationals, and their current status.

The new critical skills list

Some of the most significant changes in the new critical skills list (which employers looking to hire foreign nationals, and employees looking to obtain a critical skills work visa or permanent residence permit in South Africa should note) are:

• the list has been reduced significantly and certain categories of professionals (which were previously included in the old list) have been excluded from the current list. The most noteworthy categories of professionals excluded from the current list are in the medical and academic fields;
• certain categories of professionals (who were not included in the old list) are included in the current list. These categories include tax specialists, internal auditors, forensic accountants and investment managers;
• the new list re-introduces teachers and lecturers with a focus on Science, Technology, Engineering and Mathematics (STEM) for Grades 8 to 12, as well as university lecturers that fall into the Classification of Educational Subject Matter (CESM) categories;
• all foreign nationals applying for a critical skills work visa will now have to include an offer of employment. This was not a requirement under the old list;
• the new list requires a minimum NQF level qualification for each occupation from level 3 to 10 (with the average required NQF level qualification between 8 and 9);
• qualifications are required for each occupation. This essentially means that foreign nationals who previously qualified for certain positions under the old list may no longer qualify for those positions under the current list; and
• when foreign nationals apply for permanent residency, they will be required to provide the necessary post qualification experience.

Importantly, if foreign nationals do not meet the requirements in the new list, they cannot apply for a renewal of their current critical skills work visa. However, foreign nationals who hold a critical skills work visa under the old list, and whose qualifications do not meet the requirements set out in the new list, will be able to apply for a South African permanent residency permit under their particular occupation.

In addition, the Minister of Home Affairs has withdrawn the following directives:

• Immigration Directive No 22 of 2014 : Confirmation of the skills or qualifications of the applicant as part of the supporting documents for a critical skills visa; and
• Waivers granted in terms of section 31(2)(c) of the Immigration Act : Granting permanent residence status in terms of Section 27(b) of the Immigration Act: graduates from South African tertiary institutions in the area of critical skills.

Zimbabwean Exemption Permits

The Minister of Home Affairs issued a directive on 7 January 2022 (signed on 29 December 2021) extending the Zimbabwean exemptions granted to Zimbabwean nationals for 12 months, to allow them to apply for one of the visas in the Immigration Act for which they might qualify. The Directive provides that the decision should be implemented as follows, during the 12-month period ending 31 December 2022:

• no holder of the exemption may be arrested, ordered to depart or detained for purposes of deportation or deported in terms of section 34 of the Immigration Act (deportation and detention of illegal foreigners) for any reason related to him/her not having any valid exemption certificate in his/her passport. The holder of the exemption permit may not be dealt with in terms of sections 29 (prohibited persons), 30 (undesirable persons) and 32 (illegal foreigners) of the Immigration Act;
• the holder of the exemption may enter or leave the Republic of South Africa in terms of section 9 of the Immigration Act (admission and departure), read together with the Immigration Regulations, provided that he/she complies with all other requirements for entry into and departure from the Republic, save for the reason of not having valid permit indicated in his or her passport; and
• no holder of an exemption should be required to produce (i) a valid exemption certificate (ii) an authorisation letter to remain in the Republic when making an application for any category of the visas, including a temporary residence visa.

The Draft Policy

The Draft Policy (which is the first of its kind in South Africa) is intended to be a technically sound policy instrument, which will strengthen the country’s approach to labour migration in a co-ordinated manner across key ministries. The Draft Policy was informed by the rapid expansion of international migration (and the need for external expertise and skills to supplement in-demand areas), which requires the development of appropriate policy. The strict focus of the Draft Policy is labour migration (i.e. international mobility for the purpose of employment) and has been designed to achieve the following:

The following notable recommendations (among many others) are made in the Draft Policy:

• the attraction and retention of skills (particularly critical skills) in the country, regardless of their origin (local or foreign) should be a priority, implying that there should be regular updating and closer monitoring of critical skills lists in relation to policy impact and clear management of targets;
• measures to address youth and female unemployment should consider the position of both South African citizens and foreigners, who legally reside in and are entitled to work in the country;
• there should also be better co-ordination and transparency of professional organisations and education and training quality assurance bodies in establishing recognition of qualifications and competencies consistent with national critical skill lists and those with skills in high demand;
• the DEL should become the lead department in the definition of labour market needs and priorities in relation to labour migration regulation, while the Department of Home Affairs should remain the custodian of border control, visa issuance and identity documentation and verification, as well as the final decision-maker on all aspects of migration unrelated to work and employment; and
• there is a need to develop a well-functioning labour market information system, to which labour migration planning and policy frameworks should be linked.

The Draft Bill

The Draft Policy discussed above goes hand-in-hand with the Draft Bill , which seeks, among other things, to:

Some of the important changes which the Draft Bill seeks to include are:

• the preparation of a skills transfer plan in respect of any position in which a foreigner is employed. The skills transfer plan is currently only a requirement for an intra-company transfer work visa. The Draft Bill provides that the Minister may, if it is consistent with the purpose of the ESA, make a determination to exclude the requirement to prepare a skills transfer plan in respect of any category of employers or any category of employees or workers;
• specifying a maximum quota for the employment of foreign nationals by employers in any sector on notice by the Minister;
• the Labour Court may, on application by the Director-General, impose a fine not exceeding ZAR 100,000 (previously ZAR 50,000) on an employer who contravenes the provisions of Schedule 3 of the ESA (which sets out those offences for which a fine can be imposed by the Labour Court);
• • a requirement for any person who employs a foreign national to work within South Africa to satisfy themselves that there are no persons in South Africa, other than foreign nationals, with the requisite skills to fill the vacancy before recruiting a foreign national. This is currently only a requirement for general work visas and corporate visas;
• • the application of the ESA to digital labour platforms. A digital labour platform is an electronic entity that enables the provision of work or services by a person to any other person in South Africa. The inclusion of the digital labour platform as an employer is significant; and
• an employee or worker who is employed in contravention of Chapter 3A (employment of foreign nationals, quotas for employment of foreign nationals and regulations on employment of foreign nationals) is entitled to enforce any claim that they may have in terms of any statute, collective agreement or contract against his/her employer or any person who is liable in terms of the law. This poses a potentially significant risk for an employer, as it is arguable that a foreign national who is employed (and who should not be employed) may now take action against the employer.

South African employers will still be required to comply with the Immigration Act by ensuring that (i) each foreign national has the right to work under the stipulated conditions under his/her work visa (ie asylum seekers, refugee holders and workers) and (ii) each foreign national employed has the correct work visa as each work visa is employer specific, except for asylum seeker and refugee holders.

Submissions on the Draft Policy and Draft Bill are to be made to the DEL by 28 May 2022. All employers are encouraged, to the extent that the Draft Bill and Draft Policy will have an impact on their businesses, to participate in the public hearings and make submissions on the Draft Policy and Draft Bill at the earliest possible opportunity.