The new immigration policy is intended to help achieve numerous government goals. First of all, it seeks to stop the illegal influx of immigrants into South Africa by simplifying the process of applying for various types of permits to legalize stay in the country. The immigration policy provides conditions for creating a favorable environment for foreign investment in South Africa. Thirdly, with its help, the government hopes to fill the shortage of skilled labor, which is necessary to bring the economy in line with far-reaching plans to improve living standards and eliminate economic backwardness.
Foreign citizens may apply for two different categories of residence permits – temporary residence and permanent residence.
Temporary residence permit
There are 13 different types of temporary residence permits: guest visa, diplomatic visa, student visa, state visit agreement, business establishment permit, crew visa, medical treatment trip, trip to visit relatives, work permit, retirement program stay, application by a legal entity to employ a foreign citizen, employee exchange visit, political asylum. Let us consider the main types of permits listed.
Guest visa is issued for a period of no more than three months, and after re-application it may be extended for a period of no more than three months. However, if a foreign citizen is engaged in scientific, research or charitable activities in South Africa, the permit may be issued for up to three years, provided that the applicant is able to provide proof of financial independence for this period.
An application for a student visa is submitted together with an official letter from the relevant institution, confirming compliance with the provisions of the state visit and the duration of such visit. A student visa does not give the applicant the right to engage in work. The holder of a student visa may take up part-time work, provided that the work schedule does not exceed 20 hours per week.
Business establishment permit may be issued to a foreign citizen who is establishing/investing funds or intends to invest personal finances in a business organization in South Africa, in which he may be employed. An application for the permit is submitted together with a certificate issued by a certified accountant, confirming that the applicant has at least 2.5 million rand in cash or capital funds of the same value, or at least 2 million rand in cash and capital equivalent to 500 thousand rand, that the source of these funds is outside the state, and the applicant intends to invest them in the capital of the enterprise ($1 – 6.48 rand). Moreover, the applicant must submit a business plan confirming the feasibility of the enterprise's goals, and both a short and full version of the plan must be provided. He also must document that at least five South African citizens or residents will be employed on a permanent basis in the enterprise.
Work permit. In this case, it should be borne in mind that there is a difference between a work permit for foreign persons who constitute a certain professional category or have professional skills, and an ordinary permit for most other applicants. The number of permits for designated categories of workers may not exceed the established quota. The holder of such a special permit must submit to the Ministry of Internal Affairs confirmation of qualification for the corresponding category or class within 90 days of receiving the permit.
An ordinary permit may be issued to a foreign citizen who does not constitute a special category or class, as indicated above, provided that the future employer, despite a properly conducted search, has not been able to hire a South African citizen with the qualifications or skills and experience that the applicant can offer, and that the applicant's working conditions will not be lower than the conditions established on the labor market for South African citizens. An ordinary work permit will be considered expired if, within six months from the date of its receipt, and every year thereafter, the holder of the permit fails to provide the authorities with confirmation that he continues to carry out paid employment.
Retirement program stay. The law provides that a temporary residence permit for a period exceeding three months may be granted to a foreign citizen who intends to retire in South Africa, provided that he has confirmation of his right to receive pension payments, an irrevocable annuity, or the opening of a pension account that will provide a specified subsistence minimum for life (with the funds to be paid by the applicant's country of origin). The minimum payment to a foreign citizen provided by law may not be less than 20 thousand rand per month (more than $3,000). A foreign person staying in South Africa under a retirement program may remain in the country on a seasonal or permanent basis for no more than four years; however, it is possible to re-apply to extend this period.
Application by a legal entity for acceptance of a foreign citizen for employment. A legal entity intending to employ a foreign citizen may apply for a temporary residence permit in this category. With the participation of the Ministries of Labour and Trade and Industry, the Ministry of Home Affairs decides on the maximum number of foreign citizens to be employed. A foreign citizen employed on the basis of such a permit is obliged to leave the country upon completion of his or her employment obligations.
Permanent residence permit
Section 25 of the 2002 Act provides that the holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen, except for those rights, privileges, duties and obligations that legislation or the constitution attributes exclusively to citizens of the country.
In accordance with Section 26 of the 2002 Act, a 'direct' permanent residence permit may be issued to a foreign citizen who:
- has held a work permit (including a permit obtained as a result of an application by a legal entity) for 5 years and has received an offer of permanent employment;
- is the spouse of a citizen or permanent resident for 5 years, and the Ministry of Home Affairs must be satisfied as to the genuineness of the marital relationship. Such a permit will be declared invalid if within two years of its issuance the genuineness of the marital relationship ceases, except in the event of the death of the spouse;
- is a child of a citizen or permanent resident under the age of 21. This permit will lapse if the foreign citizen does not apply for its confirmation within two years of reaching the age of 21.
Section 27 of the 2002 Act also provides for the possibility of issuing a permanent residence permit 'on other grounds'. Such a permit may be issued to a trustworthy foreign citizen who:
- has received an offer of permanent employment;
- has demonstrated in practice the possession of excellent work skills or qualifications;
- intends to establish or has established a business enterprise in the country;
- is a refugee;
- intends to retire, provided that he or she confirms the right to receive pension payments, an irrevocable annuity or the opening of a pension account that will ensure the established minimum subsistence level for life, or provided that he or she possesses net assets of the established amount;
- has confirmed that he or she owns net assets of the established amount and that the required amount has been paid to the Ministry of Foreign Affairs;
- is a close relative of a citizen or permanent resident (first degree of kinship).
An application for the permit referred to in Section 27(c) of the 2002 Act must be submitted together with a certificate issued by a chartered accountant of South Africa confirming that the applicant has at least 2.5 million rand in cash or capital funds of the same amount, or at least 2 million rand in cash and capital equivalent to 500 thousand rand, and that the source of these funds is outside the state, and that the applicant intends to invest them in the capital of the enterprise. Moreover, the applicant must submit a business plan confirming the feasibility of the enterprise's objectives, and both a short and full version of the plan must be presented. He must also document that at least five South African citizens or residents will be employed in the enterprise on a permanent basis.
The payment under the provisions of Section 27(e) will be 20 thousand rand per month, and own funds may be represented by a combination of assets amounting to 20 thousand rand per month.
Paragraph 27(f) provides for own funds of not less than 7.5 million rand, and the fee to the Ministry of Home Affairs upon approval of the application will be 75 thousand rand.
A permanent residence permit may be revoked in accordance with Section 28 on the following grounds:
- the holder of the permit has been found guilty of any of the offences listed in Schedules 1 and 2 of the Act (for example, an offence against the Republic, murder, rape, indecent assault, robbery, kidnapping for ransom, arson or an attempt to commit any of these offences);
- the holder of the permit has been absent from the country for more than three years;
- the holder of the permit has not settled for permanent residence within 1 year of obtaining the permit.
The conditions for the prosecution and deportation of foreign citizens illegally present in the country are set out in detail in Section 34 of the 2002 Act.
One of the main goals of the law "On Immigration" is to regulate a new immigration control system that should ensure economic growth through the employment of in-demand foreign personnel, attraction of foreign investment, and influx of experienced and qualified labor resources. However, it should be noted that changes in legislation may to some extent deter foreign citizens from investing in South Africa due to burdensome requirements, such as, for example, the need to hire at least five citizens or permanent residents of the country. Moreover, it is unclear for what purposes applicants need to submit a certificate of their qualifications issued by the relevant South African authority, especially when it is obvious that the qualification level of a foreign specialist meets local requirements. It remains to be seen whether the new legislation will live up to the expectations placed on it and prove better than the previous one.