Over the past 10 months, the Department of Home Affairs (DHA) rolled out several significant changes that will impact the immigration space in South Africa. These include the appointment of a new Minister of Home Affairs, the introduction of a point-based immigration system (not applicable to Zimbabwean Exemption Permit holders) and remote work visas, and an extension of temporary concession allowing foreign nationals to stay in South Africa while waiting for the outcome of their pending applications.
Continuous reports of visa processing delays have raised concerns about the challenges to the current immigration processes, particularly the immigration restrictions placed on skilled individuals and the burdensome effect that this is having on South Africa's economic growth. While the government is still working on solutions to such concerns and contemplating proposed reforms to the current immigration legislation, we provide an overview of the current situation and the effects thereof.
Appointment of a new Minister of Home Affairs
On 30 June 2024, President Cyril Ramaphosa appointed Dr Leon Amos Schreiber as the new Minister of Home Affairs.
Since taking office, the new Minister and his team have cleared 62% of the visa application backlog dating back to over a decade. The DHA's future goal is to eliminate the remaining backlog by 31 December 2024. On 4 July 2024, the Minister of Home Affairs provided an extension to foreign nationals who are waiting in South Africa for the outcomes of their waiver, visa, and appeal applications.
Amended Immigration Regulations
On 18 October 2024, the Minister of Home Affairs published a revised Government Gazette No. 51416, which addresses the Third Amendment of the Immigration Regulations. The key changes are detailed below.
Remote Work Visa
Remote working visas have been introduced under the Visitor's Visa category in terms of section 11(2) of the Immigration Act 13 of 2002. This means that foreign nationals wishing to apply for a visitor's visa must meet the following requirements to qualify:
- the foreign national must be an employee of a foreign employer;
- such foreigner must earn a gross income of at least ZAR 650 976 per annum and this must be proven by the latest three months of bank statements;
- if the foreigner is a tax resident in a country that the Republic has an agreement in force with for the prevention of or relief from double taxation under section 108(2) of the Income Tax Act, 1962, such foreigner will be required to register with the South African Revenue Service (SARS) if he is present in the Republic for longer than an aggregate period of 183 days during any 12-months period; and;
- if the foreigner is not a tax resident in a country referred to in sub-paragraph (ii), such foreigner will be required to register with the SARS.
A foreign national who holds a Remote Work visitor's visa is not allowed to take up employment in South Africa, and cannot change their visa status while in South Africa, unless the exceptional circumstances set out in the Immigration Regulations apply.
Point-Based System
The new point-based system will now apply to General Work Visas as well as Critical Skills Work Visas in terms of section 19(2) and section 19(4) of the Immigration Act respectively.
For ease of reference, the criteria and points are set out below:
| |
Criteria |
Points (%) |
Criteria |
Points (%) |
|
Occupation | If the occupation is on the critical skills list | 100 | | |
|
Qualifications | NQF levels 9 and 10 | 50 | NQF levels 7 and 8 | 30 |
|
Offer of Employment (Mandatory) | Above ZAR 976 194 gross per annum | 50 | Between ZAR 650 796 and ZAR 976 194 gross per annum | 20 |
|
Work Experience | 5 – 10 years | 20 | 10+ years | 30 |
|
Employment Status | Offer from Trusted Employer | 30 | | |
|
Language Skills | Proficient in at least one official language | 10 | | |
To get a General Work Visa or a Critical Skills Work Visa, a foreign national must score 100 points and meet all other prescribed requirements for such a work visa set out in the Immigration Regulations.
If the foreign national reaches 100 points because their occupation is listed on the Critical Skills List and they meet all other prescribed requirements, then the foreign national may be issued with a Critical Skills Work Visa.
If the foreign national reaches 100 points through a combination of other criteria (other than being listed on the Critical Skills List) and meet all other prescribed requirements, then the foreign national may be issued with a General Work Visa.
Foreign nationals who do not reach the 100-point threshold will still be able to apply for a work visa by providing additional motivation. However, the DHA will assess the points against the criteria and the foreign national may therefore still face the possibility of their application being rejected.
It is important to note that foreign nationals who applied for their General Work Visas or Critical Skills Work Visas before these new rules were implemented and are still waiting for the outcomes of their pending work visa applications, will be adjudicated in accordance with the older legislation that was in place at the time that they applied.
It is furthermore important to note that the points-based system will not apply to the foreign nationals with a Zimbabwean Exemption Permit (ZEP) who have already applied, or still need to apply for mainstream Critical Skills Work Visas or General Work Visas. These applications will be adjudicated by the DHA in line with the terms and conditions applicable to ZEP holders.
Ministerial Waivers
On 8 October 2024, the Minister of Home Affairs issued two important Ministerial Waivers relating to General Work Visas and Critical Skills Work Visas. The key points are as follows:
- The requirement to provide a certificate from the Department of Employment and Labour when applying for a General Work Visa has been waived and is thus no longer a requirement for a General Work Visa.
- A partial waiver has been granted in respect of the requirement to provide a South African Qualifications Authority (SAQA) Evaluation Certificate and this partial waiver will be implemented:
- if a foreign national provides their actual SAQA Evaluation Certificate, then they may qualify for a General Work Visa or Critical Skills Work Visa for up to five years; or
- if a foreign national can only provide proof that they applied for a SAQA Evaluation Certificate and are still waiting to obtain the certificate, then they can get a General Work Visa or Critical Skills Work Visa for one year. Once they provide the actual SAQA Evaluation Certificate, then they can apply for the full duration of the visa.
It is important to note that these Ministerial Waivers merely assist applicants in applying for a General Work Visa or Critical Skills Work Visa and do not guarantee positive approvals of such applications. Employers who employ foreign nationals should be aware of these changes.
The Webber Wentzel Immigration team continues to monitor directives issued by the DHA to provide the latest updates, insights, and analysis. Our service offering includes assisting employers in navigating these regulations and implementing effective workplace solutions to ensure legal compliance and minimise operational disruptions.
