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Nigeria has issued Immigration Regulations 2017, the biggest overhaul in 50 years to the country’s immigration rules. The regulations provide a legal framework for implementing the Immigration Act of 2015 and aim to bring Nigeria’s immigration system up to date with current geopolitical issues that range from fostering business and investment to combatting trafficking and other crimes.
SUMMARY: NIGERIA’S IMMIGRATION REGULATIONS 2017
Business-Related Provisions
The Immigration Regulations, released March 21 with immediate effect, contain a number of provisions that affect business immigration. In addition to liberalizing certain rules, such as making all foreign nationals eligible for visas on arrival and providing for in-country renewal of temporary work permits, the regulations also impose new compliance measures on companies and foreign nationals, including mandatory registration of foreigners and stricter penalties against companies and individuals who fail to renew their expatriate quotas or report their foreign worker numbers or commit other immigration-related offenses.
Read the full BAL Backgrounder HERE
Copyright © 2017 Berry Appleman& Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The South African Department of Home Affairs has announced that it will present a White Paper on immigration to the Cabinet this month that proposes to overhaul South Africa’s immigration priorities and usher in significant changes to the country’s immigration system.
The White Paper is expected to introduce a points-based system for work permits, new fees on employers who use foreign labor to fund training and education programs for local workers, and heightened workplace inspections and stricter enforcement of companies who hire foreign workers without the proper work authorization.
With high unemployment, sluggish economic recovery and a steady influx of refugees, South Africa has made several indications that it will move to prioritize employment of local workers. Additionally, recent anti-immigration demonstrations have blamed foreigners for loss of jobs, and the Home Affairs Minister has signaled that businesses will be held accountable for illegal working violations.
Read the full BAL Backgrounder here.
Home Affairs Minister Malusi Gigaba has confirmed that the Cabinet will consider comprehensive immigration reform proposals by the end of March and reiterated that South Africa is committed to increasing immigration-related workplace inspections immediately.
Key Points:
Background: South Africa has seen an increase in anti-immigrant protests recently, including a demonstration in Pretoria Friday in which police used rubber bullets and tear gas to disperse crowds. Gigaba’s remarks marked the second time in the last two weeks that he has addressed issues of illegal work in certain economic sectors. Last week, after meeting with business leaders in the hospitality sector, he said that the government will work to enforce rules to benefit local workers, including rules requiring certain companies to maintain a 60-percent ratio of local-to-foreign workforce. In his remarks last week, Gigaba tied the anti-immigrant sentiment of the demonstrations to businesses that do not follow immigration laws. “Business is a critical partner in managing anti-immigrant sentiments and more will be expected of them,” he said.
BAL Analysis: Businesses should anticipate an increase in the number of workplace inspections as well as stepped-up enforcement of rules designed to protect local workers. Thus far, the government seems to be focusing on the hospitality and food retail sectors in particular, but the Department of Home Affairs has also recently referenced other sectors, including construction and mining, as perceived abusers of the immigration system. While the specifics of pending migration reform policy proposals have not yet been published, BAL will continue to follow the matter and will update clients on significant developments as they occur.
This alert has been provided by the BAL Global Practice group and our network provider located in South Africa. For additional information, please contact your BAL attorney.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? South African authorities have said they will put recently announced changes on the validity period of visas on hold pending further discussions.
What does the change mean? Visas will remain valid beyond the expiration date of a visa holder’s passport and, pending further notification, authorities will continue to recognize the transfer of an existing visa from an old passport to a new passport. A Department of Home Affairs instruction that had aimed to change these rules has been scrapped.
Background: South African authorities said earlier this month that visas would automatically expire 30 days before the expiration date on a visa holder’s passport, regardless of for how long the visa was initially issued. BAL has learned, however, that the government has put this change on hold and will discuss the matter further. This means that for visas issued with a validity period that extends beyond the validity period of a passport, authorities will allow visa holders to travel into South Africa with their expired passport, their visa and their new passport. Those already in South Africa can transfer their visa from an old passport to a new passport.
BAL Analysis: South Africa’s reversal on a policy that would have created extensive administrative burdens on employers and visa holders is welcome news. That said, officials appear to be reviewing the policy, and additional change is still possible. BAL will continue to follow events in South Africa and will update clients on any significant changes on this matter.
IMPACT – MEDIUM
What is the change? In a recent speech, Home Affairs Minister Malusi Gigaba addressed the issue of a potential overreliance on foreign workers in certain industry sectors and stated that the government will prioritize the management of international migration to better benefit local workers.
What does the change mean? Although the speech specifically referred to a meeting with the hospitality industry last month, Gigaba said that the South African government “has a duty to ensure proper monitoring mechanisms are in place for South Africans to benefit the most from economic and employment growth, across all sectors,” and emphasized rules requiring certain companies to maintain a 60-percent ratio of local-to-foreign workforce. He also used the opportunity of the speech to announce the Department of Home Affairs’ intention to increase compliance activity to ensure that South African citizens and permanent residents are prioritized in local recruitment processes.
Background: In his speech Jan. 31, Gigaba said that a “burning issue” and “grave concern” is that many businesses, particularly in the construction and hospitality sectors, do not hire South African citizens and prefer to hire foreign workers.
“It is a matter we cannot put aside, thus its prioritization going forward. And so we have resolved this year to pay serious attention to this matter…,” Gigaba said.
Although the Minister cited the 60-percent rule, it is limited to certain immigration circumstances, i.e., to companies that have been issued a corporate visa or companies established by a foreign national who has been issued a business visa on the basis of starting or investing in a South African company. Furthermore, the requirement is that the workforce of such companies must be at least 60 percent South African citizens or permanent residents, and not South African citizens alone.
BAL Analysis: The speech signals that the Department of Home Affairs is seeking greater localization efforts by companies and is prioritizing policies to favor employment of South African citizens.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
IMPACT – HIGH
What is the change? South Africa has announced significant changes to the validity period of visas. Visas will no longer be valid beyond the expiration date of the holder’s passport, and authorities will no longer recognize or transfer an existing visa from an old passport to a new passport.
What does the change mean? All foreign nationals currently holding South African visas should check the expiration date on their passport, which is the date that now controls expiration of their visa (regardless of the visa’s stated validity period). Individuals applying for South African visas should also make sure that their passport is valid for at least 30 days beyond the requested visa period.
Background: Previously, South African immigration authorities issued visas with a maximum validity period based on the period requested in the application. If a visa holder’s passport expired during the visa period, authorities would allow the visa holder to travel into South Africa with the expired passport holding the visa and the new passport; those already in South Africa could transfer their visa from an old passport to a new passport.
Under the new Department of Home Affairs policy, the maximum validity of a visa is the passport’s validity period minus 30 days. The policy affects individuals currently holding South African visas as well as those applying for or renewing visas, and affects visas issued abroad or in-country.
According to the DHA statement, “A visa issued with an expiry date beyond that of a passport is considered to have been issued in error and when discovered will be withdrawn.” The statement further clarifies that foreign nationals will not be exempt from immigration enforcement because a visa was issued in error. Therefore, in the event that a visa holder’s passport expires while in South Africa during the visa term (even if the visa validity was issued in error), DHA is likely to deem the foreign national an overstay who is subject to being on the “undesirables” list and barred from re-entry for at least 12 months.
BAL Analysis: BAL is working with clients to identify and assess affected employees and their dependents to prevent foreign nationals currently in South Africa from overstaying their visas and to ensure that individuals applying for visas hold passports that do not expire within the maximum visa validity period.
South Africa’s Department of Home Affairs has said that messages circulating on social media claiming that the government has ordered the immediate deportation of undocumented immigrants are false.
“Citizens and all other persons in the country are strongly advised to ignore this false alarm that is seemingly seeking to fuel tensions in the country, at a time when priority is given to economic development, creating jobs and fighting poverty and inequality,” the department said. “It is in the best interest of the country for government and citizens to do all in their power together to work for stability and peace, while combating illegal migration and other crimes through lawful means.”
BAL Analysis: Companies and residents of South Africa should ignore social media messages claiming that mass deportations are imminent. BAL will continue to follow developments in South Africa, including any statements the minister of Home Affairs might make about how the agency is addressing issues concerning undocumented immigrants or asylum seekers. Companies with questions about the status of employees, or steps they need to take to make sure their employees retain proper status, should contact BAL.
What is the change? In January, South Africa will eliminate visa-waiver status for New Zealand nationals in reciprocation of New Zealand imposing visa requirements on South Africans in November.
What does the change mean? New Zealanders planning to travel to South Africa will need to obtain a visa at a South African embassy or consulate before travel. Additionally, other nationals currently enjoying visa-free travel to South Africa should be aware that the South African government plans to review all other countries that do not provide reciprocal benefits to South Africans.
Background: Last month, New Zealand withdrew visa-waiver status from South African nationals because of an increase in the number of South Africans who had been refused entry. On Tuesday, South Africa’s Department of Home Affairs announced that it will reciprocate and repeal the visa exemption for New Zealand nationals as of Jan. 16. In making the announcement, DHA Minister Malusi Gigaba also confirmed that South Africa will review all other countries that impose visa requirements on South Africans with the intention of ensuring additional reciprocity.
BAL Analysis: New Zealanders planning to visit South Africa on or after Jan. 16 must hold a valid visa or will be denied entry. BAL is following South Africa’s review of other countries that currently enjoy visa-free travel to South Africa and will report any additional changes in the country’s visa-waiver policies.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? The Department of Home Affairs has asked the South African Treasury for an exemption to a government staffing cap so that it can hire thousands more immigration inspectors. The department says the immigration inspectors are badly needed and has resorted to temporary staffing increases in order to help people move in and out of South Africa during the holidays.
What does the change mean? An overall increase in staffing would likely lead to fewer delays at points of entry at international airports and other immigration checkpoints but, at the same time, would likely increase in-country compliance activity undertaken by the DHA. The additional holiday staffing should help ease immigration processes through the Christmas and New Year’s holidays.
Background: The back-and-forth on the budget comes as DHA is preparing to launch the Border Management Authority. DHA says the increased staffing is needed to not only lay the groundwork for the new authority, but also to meet basic immigration services at points of entry. According to recent reports, even during peak periods, only 60 percent of immigration counters are operational in South African airports. DHA Minister Malusi Gigaba said temporary staffing increases – including adding 92 inspectors working split shifts at O.R. Tambo International Airport in Johannesburg – would help South Africa get through the peak holiday travel season and that during peak travel times in December immigration counters would be fully staffed.
BAL Analysis: The temporary increase in staffing and the possibility of longer-term staffing increases are generally positive signs for business and other travelers, as staffing increases would ease immigration procedures at South African airports and other points of entry. However, a sharp increase in the number of permanent immigration inspectors will likely increase in-country compliance activity undertaken by the DHA. The Treasury has yet to work out whether funding is available to meet the DHA’s request.
What is the change? The South African government has said it will impose a minimum wage of R3,500 (about US$257) a month. The wage would apply to both foreign and domestic workers and is expected to be implemented at some point in the next two years.
What does the change mean? Companies should take note of the announced wage increase. Once an implementation date is announced, companies should plan accordingly to ensure that no workers are paid less than the law requires.
Background: With approximately 47 percent of working people in South Africa currently earning less than R3,500 per month, the government’s minimum wage announcement was hailed by some, but also drew criticism both from those who believe that it is too low and those who believe the wage will be hard on business and lead to higher unemployment. In defending the introduction of a minimum wage in Parliamentary questioning, Deputy President Cyril Ramaphosa made it clear that the wage would apply to all workers, regardless of their nationality.
BAL Analysis: Concerns that foreign workers were being exploited played a role in the recent minimum wage debate, and the government has now made it clear that the wage, once introduced, will apply to all workers, no matter their nationality. Companies employing foreign workers should not only plan their budgets accordingly, but should also be aware that the government’s compliance and monitoring activity following the introduction of the minimum wage will likely focus on foreign national employees. BAL will continue to follow the rollout of the minimum wage, including any announcements of an implementation date.