The Draft Immigration Regulations, published for comment on 17 February 2014, could impede the country’s economic growth by restricting new investment and needed foreign skills.
This is the word from Leon Isaacson, MD of Global Migration SA, who says if the regulations are adopted they could create inconvenience for investors and applicants, effectively keeping them out of the country.
Since the Draft Regulations were announced, the public comments by the Minster of Home Affairs have focused on “the bigger picture” with respect to South African immigration and the need for a comprehensive review.
Apart from offering a patchwork solution to a range of largely operational issues within Home Affairs, there are a number of flaws in the Draft Regulations that violate the constitution and may be the cause of high-level litigation in the near future, Isaacson believes.
Most prominent of these issues, he says, is the new provision with respect to foreign spouses who will have to prove a “five year” relationship before making applications. This contravenes judgments of the Constitutional Court in Dawood Shalabi versus The Minister of Home Affairs and other similar cases.
Isaacson believes the appointment of a private service provider to operate the Home Affairs front offices, which will charge additional fees for services as a monopoly operator without the legislative backup, is also likely to be a problem.
He says that the Draft Regulations spell out a new level of bureaucratic administration and applicants will endure a cumbersome process to obtain a certificate from the Department of Labour for a General Work Permit indicating that they have complied with a whole list of requirements. Concerns have been raised that this is likely to be too drawn-out for some investors due to the capacity of labour to implement a speedy and efficient process.
Isaacson adds that the Scarce Skills list has not been published for comment, leaving most economic sectors insecure as to what this might contain, and whether their sector/s will be covered by this list.
In addition, he says, the Draft Regulations fail to include transitional provisions for people who are on one type of permit under current law and may need to apply for an extension of their stay in South Africa, assuming a legitimate purpose. It is expected this will cause continuity issues with respect to existing skilled personnel, leaving both the employers and their applicants in a tight corner.
“South Africa will be the one to suffer if we do not maintain this continuity,” Isaacson says.
