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IMPACT – MEDIUM
What is the change? Responding to complaints by 18 foreign residents, South Africa’s public prosecutor has issued a damning report on the processing of naturalization applications by the Department of Home Affairs. The foreign residents had complained that their applications for South African citizenship were delayed, denied or improperly adjudicated.
What does the change mean? Among the remedial actions the prosecutor ordered, the DHA must review its internal guidance relating to naturalization regulations, including the DHA’s practice of requiring 10 years of residency for eligibility in contradiction to the Citizenship Act’s five-year requirement. In addition, the DHA must also externally publish standard operating procedures within six months that must include expected naturalization application processing times.
Background: The complaints were brought between 2014 and 2017 by 18 foreign residents who applied for naturalization. Some of the applications were rejected as being premature based on the 10-year eligibility period applied by the DHA, even though the Citizenship Act allows foreign residents to apply for citizenship after five years of residency. The prosecutor found that 10 of the complainants should have been eligible under the Citizenship Act. Others complained that the DHA had delayed processing their applications for longer than 12 months. The prosecutor found that eight of the applicants waited 13 to 24 months for a decision while the other 10 applications were pending for 13 to 24 months and had still not received a decision.
BAL Analysis: In addition to addressing the 18 specific cases, the DHA is required to review how it applies the naturalization regulations and reconcile the eligibility period with the Citizenship Act’s five-year eligibility period. As a result, a far greater number of foreign nationals should be eligible to apply for South African citizenship than previously. In addition, it is hoped that the recommendations in the report will bring greater transparency and consistency in the processing of naturalization applications, including a standard processing timeframe.
This alert has been provided by the BAL Global Practice group. For additional information, please contact africa@bal.com.
Copyright © 2018 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 confirmed that it has conducted unannounced inspections of the Africa News Network 7 (ANN7) in Midrand, Johannesburg on Thursday, seeking to verify whether certain employees of the television station have valid work visas.
What does the change mean? South African employers are reminded that DHA’s Inspectorate Directorate is authorized to conduct unannounced onsite inspections to verify immigration status of employees.
Background: According to local press reports, DHA officials raided the ANN7 studios and questioned human-resources staff for hours, seeking employee files on the suspicion that up to 10 Indian national employees were working with expired visas. ANN7 is a 24-hour news channel in South Africa that was owned by the controversial Gupta family until August 2017. The service broadcasts on the DStv satellite television service owned by Multichoice. The DHA called it a routine inspection that was based on information it had received. In its announcement, the department said that it would release the results of the inspection after it verifies its findings.
BAL Analysis: The high-profile raid, which has received extensive press coverage in South Africa, should serve as a reminder to all employers that immigration authorities are entitled to appear at company premises to inspect documents at any time. Employers should be mindful that immigration violations, including overstaying a visa, may carry serious consequences.
What is the change? President Cyril Ramaphosa announced his government’s cabinet Monday, reshuffling several posts and moving Malusi Gigaba from Finance Minister to Minister of Home Affairs.
What does the change mean? Gigaba previously headed the Department of Home Affairs from 2014 until March 2017 when then-President Jacob Zuma moved him to the Ministry of Finance. His reinstatement at DHA could mean that he will continue to implement a proposed overhaul of the country’s immigration system under a DHA white paper that was released in 2017.
Background: The DHA has seen several cabinet reorganizations in the past year with Gigaba replaced in March and his successor replaced in October. Ramaphosa took office earlier this month after Zuma resigned following a vote by the National Assembly Feb. 15.
BAL Analysis: The reinstatement of Gigaba provides some certainty, given his record with the DHA. While Ramaphosa is expected to promote business-friendly policies, it is unclear which reforms he advocates in the DHA white paper. The landscape will become clearer in the coming weeks as the new government and Gigaba set out their priorities related to immigration. BAL produced a backgrounder last March on the proposed changes. Read the full backgrounder here.
Jacob Zuma resigned as president of South Africa Wednesday and has been replaced by Cyril Ramaphosa, who was elected in December to lead the ruling political party, the African National Congress.
Key points:
Background: Zuma had been president of South Africa since 2009 and, under his leadership, the government adopted a number of immigration regulations in 2014 that were widely viewed as restrictive. The changes drew the opposition of business organizations, worried that the restrictions would hurt business and tourism. The government is now in the midst of revamping its immigration system again, and the Department of Home Affairs published a white paper in July that outlined upcoming immigration system overhauls. Changes called for in the white paper include the introduction of a points-based system for work permits, a new skills and education levy on employers of foreign nationals and measures to root out exploitation of legal loopholes by economic migrants. It is not clear what impact Zuma’s resignation will have on this process, though Ramaphosa is widely considered to be the more business-friendly leader and was elected as leader of the ANC on an anticorruption platform.
BAL Analysis: While it remains to be seen what precise impact a Ramaphosa presidency will have on specific policies or proposals, BAL anticipates that he will push for business-friendly immigration reforms. BAL will continue following developments in South Africa and will alert clients to any significant changes to immigration programs.
This alert has been provided by the BAL South Africa office. For additional information, please contact africa@bal.com.
What is the change? For overstaying her visa by one day, celebrity British stylist Sophia Hesketh has been put on South Africa’s list of “undesirable persons” and is barred from entering the country for the next 12 months unless she obtains a waiver from the Director-General of the South African Department of Home Affairs.
What does the change mean? Travelers are reminded that South Africa is serious about enforcing entry bans under the Immigration Act with all travelers, even high-profile and frequent visitors to South Africa.
Background: Hesketh, a British socialite and daughter of U.K. politician, baron and Grand Prix team owner Alexander Hesketh, was reportedly in Western Cape for a photo shoot but overstayed her visa by one day. Upon preparing to leave from the Cape Town airport, she was stopped, put on the list of “undesirable persons” and banned from the country for one year.
This is not the first case in which South African authorities have made an example of a celebrity who violated immigration regulations. In 2016, American hip-hop artist Mos Def was detained in Cape Town when he attempted to leave the country using a “world passport,” which South Africa does not recognize. South African prosecutors also sought to bring criminal charges against the musician, but dropped them after he apologized and agreed to leave the country on a U.S. passport. The government still barred him from re-entering the country unless he secures a waiver of inadmissibility.
BAL Analysis: Travelers to South Africa are reminded that provisions of the Immigration Act, including re-entry bars for individuals declared “undesirable persons,” are in effect and will be strictly enforced.
What is the change? The Department of Home Affairs has again extended the deadline for submitting payment, biometrics and required documentation to support Zimbabwean Exemption Permit applications.
What does the change mean? Applicants who have already completed an online portion of the application now have until Feb. 15 to provide payment, biometrics and the required supporting documentation at one of the 10 Visa Application Centres in South Africa. The window to complete the online portion of the application has closed. Zimbabwean Exemption Permits were introduced in 2017 to replace Zimbabwean Special Permits.
Background: The Department of Home Affairs announced in September that Zimbabwean Exemption Permits would replace Zimbabwean Special Permits. The permits will allow qualifying Zimbabweans to work, study or conduct business in South Africa for up to four years. The application period opened Sept. 15 and DHA said it had received 176,605 completed applications as of Jan. 29. The DHA has now extended the deadline for submitting payment, biometrics and required documentation to Feb. 15.
BAL Analysis: The extension will ease application procedures for Zimbabweans hoping to convert their Zimbabwean Special Permits and remain in South Africa. While the program will provide authorization to work, study or conduct business in South Africa for an additional four years, however, authorities made it clear that newly issued permits will not be extendable and will not be accepted as the basis to apply for permanent residency.
What is the change? South Africa is in the midst of switching to a biometric background check system for applications that require South African police clearance certificates.
What does the change mean? Foreign nationals submitting in-country applications that require South African police clearance can do so through a new service that checks their fingerprints against the South African police database. This option costs 175 rand (about US$13.85) and has been available since Nov. 1. Beginning Jan. 1, however, visa application centers in South Africa will stop accepting hardcopy police clearance certificates and will move exclusively to the automated system.
Background: South African police clearance certificates are required for foreign nationals who are submitting immigration applications and have resided in South Africa for 12 months or more since turning 18 years old. Visa application centers are now able to check an applicant’s fingerprints against the appropriate police database, eliminating the need for hardcopy police clearance certificates.
BAL Analysis: The new system will save significant time in the application process for most applicants. Those who suspect they might have a criminal conviction in South Africa, however, should disclose this to BAL in order to leave time to apply for the appropriate records to provide information to authorities about the nature of the conviction.
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.
IMPACT – HIGH
What is the change? The South African Government has released its anticipated White Paper that provides a policy framework for comprehensive review and overhaul of the country’s immigration system and the introduction of significant changes over the next two years.
What does the change mean? The White Paper is intended to bring South Africa’s immigration system up to date and calls for strategic management of all aspects of migration to further the country’s economic goals – from the entry and departure of foreign nationals, to attracting critical skills and investment, to promoting regional integration and addressing refugee populations, and enforcing compliance regimes.
Changes requiring only administrative action will take effect immediately; changes requiring legislative approval will be included in legislation to be submitted to Parliament by March 2019.
Key business immigration proposals:
Background: The White Paper details many of the proposals that were first outlined in a Green Paper that the Department of Home Affairs released last year and reiterates the policy objectives of systemic overhaul of the immigration system.
BAL Analysis: The White Paper’s policy objectives and proposed changes have far-reaching implications for South African employers and multinational companies that rely on foreign talent. Companies should anticipate significant changes to the country’s immigration regime in the coming two years.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
What is the change? The centers that handle Indian visas for applicants in South Africa have announced that they will begin collecting biometrics from visa applicants, who will be required to schedule their appointments through a new online system.
What does the change mean? Effective July 17, visa applicants must complete an application form online and then make an appointment to appear in person to have their biometrics (fingerprints and facial image) taken. The change does not affect e-visa applicants, who are required to provide biometrics upon arriving in India.
Background: All visa applicants in South Africa whose biometrics have not been submitted to Indian authorities in the past five years will be required to make a biometrics appointment before their visa application is finalized. Once applicants provide biometrics, they will not need to do so again for subsequent applications over the next five years. The change appears to be part of a worldwide rollout by the Indian government. A similar requirement was recently imposed for visa applicants in Singapore.
BAL Analysis: The new biometrics requirement adds an additional step to the application process for Indian visas in South Africa. Those affected should be sure to leave enough time in their schedules to appear in person and provide biometrics. Once biometrics have been collected, subsequent applications will not require individuals to be present. Those who fail to provide biometrics taken will have their visa applications rejected.
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 Africa’s Department of Labour has switched to a new online system that allows applicants for general work visas to know whether the DOL will provide a positive or negative assessment of applications before they are submitted for final consideration to the Department of Home Affairs.
What does the change mean? Under the new system, the DOL’s assessment will save employers significant time because they will know whether to move forward with applications. Previously, the DOL’s assessment was not revealed until after the DHA made a final determination.
Background: In recent years, DHA began soliciting DOL input on general work visa applications before making final determinations on them. The DOL portion of the application can now be completed online. Before the online system was implemented, the DOL did not tell applicants whether its assessment was negative or positive before applicants submitted their applications to DHA. With the change, applicants can move forward with applications that receive a positive DOL assessment and abandon applications, if they so choose, that receive negative assessments.
BAL Analysis: The DOL’s assessment of general work visa applications figures heavily into the DHA’s adjudication process. The change makes the application process easier for employers and foreign nationals because they will know before submitting their final application to DHA whether their applications are viable.
This alert has been provided by the BAL Global Practice group. 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.