General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

South African immigration is governed by the Immigration Amendment Act (the Act) and Regulations thereto (implemented on 26 May 2014), which controls the movement of foreign nationals who enter the country for purposes of investing their financial resources, skills and experience to promote economic growth.

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

South Africa has not signed any international agreements (apart from the visa-exempt agreements mentioned in question 5). South Africa has issued certain dispensations to regularise the status of certain nationalities in southern Africa (Zimbabwe, Lesotho, etc).

Regulatory authorities

Which government do authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?

The Department of Home Affairs (DHA) is responsible for the control, regulation, and facilitation of immigration to South Africa, including the enforcement thereof. Enforcement measures include fines or imprisonment for breaches of the immigration legislation with the potential for the deportation of non-compliant foreign nationals. The Department of Labour (DoL) is increasing its role in the immigration process, in conjunction with the DHA, to ensure sustainable opportunities for South African citizens or permanent residents in the local employment market.

Decisions of the DHA and DoL are subject to internal and external appeal through stated regulations or court action, as needed.

Government policy

In broad terms what is your government’s policy towards business immigration?

The South African government supports skilled immigration by its stated policy to develop and expand the local economy for the benefit of South Africa and its citizens.

However, this policy is balanced against the need to address unemployment levels within the country, security issues for the country (including citizens, foreign nationals, and minor children and travellers) and the commitment to increase employment opportunities for local citizens.

Accordingly, the intention is that the importation of foreign skills to South Africa should gradually decrease through the training of local citizens to meet future employer demand.

Short-term transfers

Visas

In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?

The South African government distinguishes between visa-exempt and non-visa-exempt nationalities. Visa-exempt nationals may travel to South Africa for periods of up to 30 or 90 days (the distinction depends upon their nationality) for tourism and limited business purposes and receive the visitor’s visa upon arrival at the South African port of entry.

Non-visa-exempt nationals are required to apply for the required visitor’s visa in person at the South African representative in their home country or country of long-term residence and receive the same before travelling to South Africa. The visitor’s visa may be issued for a maximum period of 90 days (single or multiple entries) and the processing time ranges from 10 to 15 working days calculated from the date of submission of the application.

The purpose of these visitors’ visas is to facilitate entry for tourism and limited business purposes while work activities are prohibited. All foreign nationals (irrespective of nationality) intending to perform short-term work in South Africa are required to apply for a section 11(2) visitor’s visa in person from the South African representative in their home country or country of long-term residence and receive same before travelling to South Africa.

Eligibility to perform work-related activities under a section 11(2) visitor’s visa is subject to specific qualifying criteria originally introduced by the DHA in December 2011 and amended in May 2014.

Restrictions

What are the main restrictions on a business visitor?

A foreign national entering South Africa to undertake business activities (not work) will be permitted to attend local business meetings or training and strategy sessions for a limited duration. There is no specific maximum duration applicable to business visitors; however, the foreign national, if queried, must be able to justify the length of stay spent in South Africa and the non-work-related activities being performed. A business visitor should not receive remuneration from a South African source while present in South Africa.

A foreign national intending to perform work-related activities within South Africa must obtain a visitor’s visa (section 11(2) of the Act) with special conditions. General practice requires such foreign national to retain employment abroad throughout his or her stay in South Africa (external contractor resources are only permitted in certain instances) and, in accordance with the revised qualifying criteria, such foreign national’s activities in the country must be of an urgent nature and such individual must be unable to qualify for a formal category of work visa. The DHA has further issued a directive preventing certain applicants from eligibility for a section 11(2) visitor’s visa based on the intended activities to be performed in South Africa (these exclusions include project managers and self-employed applicants).

A recent directive issued by the Department of Home Affairs in April 2019 has limited the issuance of these visas to an initial 90-day visa issued at a South African embassy abroad, followed by an extension of the visa for a further 90 days from South Africa within the same calendar year. Total duration is limited to 180 days per year and a third section 11(2) visa cannot be applied for abroad within the same calendar year.

This has been the accepted practice for some time; however, the directive further refers to prohibiting back-to-back issuance of section 11(2) visitor’s visas from the consulate in the applicant’s home country.

There is no definition of the time period intended by ‘back to back’ and this will impact applicants who are assigned to South Africa on different projects during a 12-month period (where such project intervals exceed 180 days from assignment start date) as the previous solution of applying for a second section 11(2) visitor’s visa at the consulate (as opposed to the extension from within South Africa) is now subject to discretion and potentially removed as an option (this will impact applications processed through Australia, Canada, the United Kingdom, and the United States, where the issuance of second such visas was previously possible).

The holder of a section 11(2) visitor’s visa may be remunerated from within South Africa (including freelance or consulting services); however, the foreign national may only open a non-resident bank account that, generally speaking, only permits receipts from offshore. Holders of a visitor’s visa further cannot import household goods free of duty or VAT.

Short-term training

Is work authorisation or immigration permission needed to give or receive short-term training?

The differentiating factor is found in the activities to be performed in the country. Attending training should not require a work endorsement, whereas presenting or facilitating training will require a work endorsement as these activities are consistent with work-related activities.

Transit

Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?

Under a directive issued in 2015, the Minister of Home Affairs exempted travellers transiting through the following international airports in South Africa from requiring transit visas:

  • OR Tambo;
  • Cape Town;
  • King Shaka; and
  • Lanseria.

Travellers transiting these airports will be subjected to biometric capturing, and travellers using land ports of entry to transit through South Africa should apply for port of entry visas.

However, deportees transiting must have transit visas and at all times be escorted; failing which, they must be returned to the airline that conveyed them for removal from the country.

A transit visa is required when travelling to one of the following neighbouring countries via South Africa: Botswana, Lesotho, Mozambique, Namibia, Swaziland, and Zimbabwe.

Transit visas are not issued at South African ports of entry and applications must be made to the South African representative abroad. Transit visas are issued for periods up to 72 hours and the processing time ranges from five to 10 days calculated from the date of submission thereof.

Visa waivers and fast-track entry

Are any visa waiver or fast-track entry programmes available?

See question 5 regarding the distinction between visa-exempt and non-visa-exempt countries. There are currently no fast-track entry programmes available; however, the DHA is planning to roll out an electronic visa (e-visa) regime before the end of 2019.

Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

The categories are dependent upon the employment relationship with the foreign national (direct employment with the South African entity or retention of employment with an entity abroad), the expected assignment or employment duration, the skills, qualifications, and experience of the foreign national and the role to be performed by the foreign national within South Africa.

Intra-company transfer (ICT) work visas are utilised for the transfer of skills between affiliated entities where the foreign national retains employment with the group entity abroad. An ICT work visa may be issued for a period of up to four years.

Corporate visas may be issued to any employer demonstrating a need for a predetermined number of foreign nationals within specific roles for a limited duration to the satisfaction of the DoL, the Department of Trade and Industry (DTI) and DHA. The issuance of the visa is subject to such an employer operating within certain industry sectors as prescribed in the national interest and possessing and maintaining a workforce comprising a minimum of 60 percent South African citizens or permanent residents in permanent employment. An individual corporate work visa is issued to an individual foreign national based on the corporate visa held by the prospective employer.

General and corporate work visas are utilised where a foreign national commences direct employment with a South African entity. These work visas may be issued for a period of up to five years subject to the duration of the employment contract or the validity period of the corporate visa (held by the employer); however, additional labour law requirements, administered by the DoL, have recently been introduced.

A critical skills work visa is available for foreign nationals intending to take up direct local employment which complies with prescribed skills to facilitate the importation of foreign nationals holding specific skills to the benefit of South Africa. In certain instances, a critical skills visa may be issued to a foreign national, in the absence of a contract of employment, for a period of up to 12 months subject to the foreign national confirming securing employment within 12 months of the date of issuance of the visa.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

ICT work visa

An ICT work visa may be issued to a foreign national who is employed abroad by a business operating in South Africa in a branch, subsidiary or affiliate relationship and who because of employment is required to conduct work in the country. A foreign employment contract and letters of motivation from the related home and host entities confirming the purpose and duration of the transfer are required. The host entity should sufficiently motivate the foreign national to be in a position to transfer skills and knowledge to the host entity during the assignment period (he or she must submit a detailed skills transfer plan upon application) and will depart the country upon completion of the tour of duty.

The foreign national applicant must have worked for the home country entity for a minimum period of six months before becoming eligible for an ICT work visa.

Corporate visa

A corporate visa is an approval granted to an employer to employ a predetermined number of foreign nationals within specific roles for a limited duration. Owing to the nature of the approval, a corporate visa requires the involvement and approval of the DoL, the DTI and the DHA.

Upon identification of a suitable foreign resource, the holder of the corporate visa must apply to the DHA for the issuance of an individual authorisation certificate to enable the foreign national to apply for an individual corporate work visa within a specific role or position.

The Act prescribes that a corporate visa may now only be issued to an employer operating within the prescribed national interest and further such employer must provide proof that at least 60 percent of the total staff complement that is employed in the operations of the business are South African citizens or permanent residents employed permanently in various positions and such ratio must be maintained through the validity period of the corporate visa. A corporate visa may be issued for a period not exceeding three years and authorisation certificates to employ workers (individual corporate work visas) may not be issued for a validity period exceeding the validity period of the corporate visa held by the employer.

The Act prescribes a minimum financial guarantee to be posted by a corporate applicant to be 30,000 rands (subject to change) per foreign national employee that the corporate applicant intends to employ.

General work visa

A general work visa may be issued to a foreign national who is intending to take up direct employment with a South African entity. The Act now requires the prospective South African employer to submit an application to the DoL for a certificate confirming the following points:

  • that despite a diligent search, the prospective employer has been unable to find a suitable South African citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant;
  • the applicant has qualifications or proven skills and experience in line with the job offer;
  • the salary and benefits of the applicant are not inferior to the average salary and benefits of citizens or permanent residents occupying similar situations in South Africa; and
  • the contract of employment stipulating the conditions of employment and signed by both the employer and the applicant is in line with the labour standards in South Africa and is made conditional upon the general work visa being approved.

An evaluation of the foreign national’s academic qualifications by the South African Qualifications Authority (SAQA) is an additional requirement; however, this may be exempted in certain circumstances where a foreign national applicant does not have formal qualifications (or existing qualifications cannot be assessed for whatever reason) and his or her skills and experience are the defining criteria for the appointment.

The DHA may, upon application for exemption thereof, waive certain of the mandatory requirements for a general work visa.

Critical skills work visa

A critical skills work visa may be issued to a foreign national provided that such foreign national falls within a specific professional category or occupational class included in the critical skills visa list.

The key requirements include SAQA evaluation, registration with the relevant professional body or council and a letter of recommendation from the relevant professional body or council recognised by SAQA attesting to the skills and qualifications of the foreign national. (A directive issued in October 2014 has removed the need for the applicant for a critical skills work visa to submit the prescribed letter of recommendation from the applicable regulatory body in circumstances where the applicant has submitted proof of membership or application for membership with such regulatory body as part of his or her application. However, certain South African representatives abroad do not accept the directive, which affects the consistency of the application process.)

A critical skills work visa may be issued upon receipt of an offer of employment, or in the absence thereof; however, the holder of a critical skills work visa must confirm receipt of employment within 12 months of obtaining the visa.

All foreign nationals are required to apply for the respective work visa either at the South African representative in their home country or country of long-term residence or the DHA within South Africa (only in certain defined instances as the majority of applications will now be submitted abroad). Foreign nationals will need to submit all prescribed personal supporting documentation including, but not limited to, birth certificates, medical and radiological reports, and police clearance certificates.

The processing times are dependent upon the category of work visa and the place of submission and range from 10 to 60 working days calculated from the date of submission thereof. Foreign nationals are only allowed to commence working or seek work following the issuance of the respective work visa.

In addition to the Immigration Regulations, the Employment Services Act No. 4 of 2014 prescribes that skills transfer plans must be prepared concerning all foreign national appointments, irrespective of the temporary residence visa category, and retained on the employee file.

In late 2018, a draft critical skills list was to be released for consultation with stakeholders. The revised list would essentially reduce certain categories, while expanding others, on the critical skills list. The final revised critical skills list has yet to be published and released for use.

The impact on applicants would be that those who previously qualified for critical skills may not qualify once the amended critical skills list is published and they would need to revert to the general work visa category where applicable. The inability to qualify for critical skills would also remove their eligibility to immediately apply for permanent residence as would have been possible under a critical skills visa.

For all categories, work can only begin once the applicant owns the approved work visa and has travelled to South Africa to commence employment or the international assignment.

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

An ICT work visa may be issued for a period of up to four years and is not renewable from within South Africa.

General and critical skills work visas may be issued for a period of up to five years.

Corporate visas (held by the employer) are issued for a period of up to three years and are not renewable – a new application would need to be submitted.

Individual corporate work visas may not be issued for a period exceeding the validity period of the employer’s corporate visa and are thus limited to a maximum period of three years subject to the validity period of the corporate visa held by the employer at the time of application and the duration of the employment contract.

Existing work visas granted under the previous Immigration Act will remain valid until the expiry date of the respective visa, following which the foreign national will be required to either extend the work visa (if the category allows for same in terms of the Act) or apply for a new category of work visa.

All work visa validity periods will be restricted to the validity period of the applicant’s passport if such a passport is valid for less than the maximum validity period available under the respective work visa category.

Processing time

How long does it typically take to process the main categories?

Submissions to the South African representative abroad take an average of 10 to 60 working days for finalisation, calculated from the date of submission thereof; however, this is dependent upon the country of submission.

Submissions to the DHA in South Africa, through VFS Global Visa and Permit Facilitation Centres, take an average of 30 to 60 working days for finalisation calculated from the date of submission thereof.

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

There are no prescribed benefits or facilities for applicants intending to apply for a work visa to South Africa; however, certain South African representatives reserve the discretion to request proof that the applicant will be provided with medical insurance and accommodation upon arrival in South Africa when adjudicating temporary residence visa applications.

Foreign nationals intending to study in South Africa require proof of medical insurance coverage for South Africa (international medical coverage accepted if under the age of 18) when applying for the required study visa.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

The mandate of the DHA is to assess all applications on an objective basis against the criteria and requirements defined in the Act and Regulations thereto.

Discretion is exercised by officials during the interpretation of the Act and Regulations, which may result in a request for additional documentation, outside of the prescribed requirements, clarification of documentation submitted and inconsistent adjudication.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

With respect to applications for temporary residence (work and visitors’ visas), there are currently no special routes for high net worth individuals or investors involving reduced lead times.

However, individuals or investors intending to permanently reside in South Africa may investigate applying under the minimum net worth category subject to meeting a prescribed minimum net worth (currently 12 million rands) and upon payment of an application fee of 120,000 rands.

Foreign nationals intending to establish a business in South Africa may apply for a business visa subject to meeting the prescribed requirements including a minimum capital investment (5 million rands) and proof or undertaking that 60 percent of the employees directly employed in the business will be South African citizens or permanent residents.

Further, the Act prescribes that a business visa may not be issued or renewed in respect of any business undertaking that has been listed as undesirable in the Government Gazette after consultation between the Minister of the Department of Home Affairs and the Minister of Trade and Industry.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

See question 16.

Highly skilled individuals

Is there a special route for highly skilled individuals?

Yes, there are options available under the temporary and permanent residence.

Temporary residence critical skills work visa

A critical skills work visa may be issued to a foreign national provided that such foreign national falls within a specific professional category or occupational class as determined by the publication by the DHA. The critical skills visa list, published in the Government Gazette (on 3 June 2014), includes several new categories, including information communication and technology (expanded list), business process outsourcing and retains engineers, life and earth science professionals and health professionals, among others.

A critical skills work visa may be applied for and issued upon receipt of an offer of employment or in the absence thereof; however, the holder of a critical skills work visa must confirm securing employment within 12 months of obtaining the critical skills work visa.

In late 2018, a draft critical skills list was to be released for consultation with stakeholders. The revised list would essentially reduce certain categories, while expanding others, on the critical skills list. The final revised critical skills list has yet to be published and released for use.

The impact on applicants would be that those who previously qualified for critical skills may not qualify once the amended critical skills list is published and they would need to revert to the general work visa category where applicable. The inability to qualify for critical skills would also remove their eligibility to immediately apply for permanent residence as would have been possible under a critical skills visa.

Permanent residence

Permanent residence may be granted to a foreign national, subject to any prescribed requirements, who demonstrates that he or she possesses extraordinary skills or qualifications under the circumstances or as may be prescribed. Accordingly, holders of critical skills work visas can apply for permanent residence in South Africa in the absence of any prescribed waiting period (subject to confirmation in practice owing to the recent implementation of the Amendment Act).

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

The only route available is a relative’s visa, which can be issued to children of South African citizens or residents intending to move to South Africa to take up permanent residence. As an immediate family member of a South African citizen or permanent resident, the individual may be issued a relative’s visa valid for 24 months, which can be further extended as required. Also, he or she may apply for permanent residence based on being a relative of a citizen or permanent resident within the first step of kinship.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

There are no prescribed minimum salary levels for work visa applications.

However, applications for a general work visa, where the foreign national is taking up direct local employment with a South African entity must be accompanied by a DoL certificate confirming that the proposed remuneration is not less than what a South African citizen or permanent resident would receive for the same duties.

Resident labour market test

Is there a quota system or resident labour market test?

Under the general work visa category, South African employers must confirm that there are no suitable South African citizens or permanent residents to fulfil a vacancy before offering the same to a foreign national.

The South African employer is required to advertise the vacancy in the national printed media and provides details of all unsuccessful citizen or permanent resident applicants and the objective reasons why they were deemed unsuitable.

The above efforts must be included in the submission to the DoL for the issuance of the DoL certificate to proceed with an application for a general work visa. The DoL reserves the right to either accept the proof as submitted by the employer or to undertake an independent search of the local labour market and refer additional candidates to the employer for assessment.

To protect the interests of the local labour pool (unemployed citizens or permanent residents), the DoL has the right to decline to issue the certificate in circumstances where it believes the vacancy could be fulfilled locally by a South African citizen or permanent resident. The absence of the DoL certificate or a negative referral from the DoL would result in the general work visa application being unsuccessful.

An applicant for a corporate visa must provide proof that at least 60 percent of the total staff complement that is permanently employed in the operations of the business are South African citizens or permanent residents. The holder of a corporate visa must ensure that the 60 percent ratio will be maintained following the issuance of the corporate visa and subsequent appointment of the approved number of foreign national employees.

Shortage occupations

Is there a special route for shortage occupations?

Yes, the critical skills list specifies shortage occupations.

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

A restriction that the applicant must have worked for the home entity for a prescribed minimum period of six months is applicable for ICT work visa applications

Third-party contractors

What is the process for third-party contractors to obtain work permission?

Third-party contractors will require a section 11(2) visitor’s visa for the initial maximum 90-day period, and potential extension thereof for a further 90-day period, subject to compliance with the qualifying criteria. However, the issuance of work visas to third-party contractors (sometimes viewed as labour broking by the South African authorities) is challenging and the circumstances of the employment role to be performed in South Africa and the recipient of the benefit for such services must be assessed before advising on the potential work visa categories.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

A SAQA evaluation is required for general and critical skills work visa applications (and may be requested for individual corporate work visa applications subject to the discretion of the adjudicating official). A letter of recommendation from a regulatory body recognised by SAQA is further required for the majority of critical skills work visa categories.

Certain professions further require a foreign national to register with the relevant professional council, body or board as part of the work visa process.

Extensions and variations

Short-term to long-term status

Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?

A visitor’s visa may not be converted into a work visa from within South Africa except under exceptional circumstances as prescribed. Accordingly, holders of visitors’ visas wishing to convert to a work visa should lodge the appropriate work visa application outside of South Africa in their country of nationality or country of long-term residence.

Exceptional circumstances include accompanying family members (spouses and children) to the holder of a business or work visa where the spouse or child intends to work or study in South Africa while continuing to accompany the primary business or work visa holder.

Long-term extension

Can long-term immigration permission be extended?

Critical skills and general work visas may be extended upon application and the number of extensions is subject to the discretion of the DHA.

The period of any extension is usually linked to the duration of the employment contract; however, this is subject to the maximum period available under the respective work visa category (as an example, a foreign national may be issued with a permanent contract of employment, but a general work visa may only be issued for a maximum period of five years and extended thereafter for another period of five years).

An existing two-year ICT work visa may be extended for a further maximum period of two years from within South Africa to meet the maximum four-year validity period (this extension application removes the need for the submission of police clearance certificates except within South Africa) or the applicant may return to his or her home country to apply for an additional two-year ICT work visa (submission in the home country is regarded as a new application requiring submission of all prescribed supporting documentation). A person who has held an ICT work visa for a period of four years may not extend the work visa for a further period from within South Africa; however, he or she may return to his or her home country to lodge a new four-year ICT work visa subject to meeting the prescribed requirements of a new application and proving successful skills transfer during the initial assignment period.

An individual corporate work visa (issued under the auspices of an employer’s corporate visa) may not be extended and the holder of such a work visa is required to depart the country upon completion of his or her contract of employment to apply for a new work visa in the home country. However, the holder of an individual corporate work visa may convert to a critical skills work visa from within South Africa subject to meeting the requirements of the critical skills work visa category and remaining in the employment of the holder of the corporate visa.

Existing work visas granted under the previous Act will remain valid until the expiry date of the respective visa, following which the foreign national will be required to either extend the work visa (if the category allows for the same) or apply for a new category of work visa.

Exit and re-entry

What are the rules on and implications of exit and re-entry for work permits?

Visitors and work visas are generally issued for multiple entries and no additional entry or exit permits are required once such a visa is issued. However, immigration officials reserve the discretion to restrict a visitor’s visa to a single entry.

For an applicant to activate a work visa under the Movement Control System, the applicant must enter the country under that work visa where such a visa was issued by a South African representative abroad.

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

Foreign nationals may qualify for permanent residency through various means, including relationships with South African citizens or permanent residents, skills and experience and duration spent in South Africa under work visas.

Personal circumstances include being a spouse of a South African citizen or permanent resident for five years and being a relative of a citizen or permanent resident within the first step of kinship.

Permanent residence through employment includes being the holder of a work visa (critical skills, quota, and general work visas) for five years subject to receipt of a permanent offer of employment. However, in addition to the permanent offer of employment, holders of a general work visa may also be required to furnish a certificate from the DoL detailing the average salary earned by a person occupying a similar position in the republic and that the terms and conditions of the work offered are not inferior to those prevailing in the relevant market sector for citizens or permanent residence.

Holders of critical skills visas are eligible to apply for permanent residence upon issuance of the visa (without a waiting period), subject to the above conditions.

Citizenship is acquired through birth, descent or naturalisation.

Permanent residence and citizenship are complex areas of immigration legislation and require professional consultation and advice prior to assessing eligibility and the appropriate category.

End of employment

Must immigration permission be cancelled at the end of employment in your jurisdiction?

All employers must notify the DHA upon the departure of a foreign national from their employment and submit proof thereof. This enables the DHA to cancel the work visa and releases the employer from any repatriation guarantees or deposits lodged in respect of the foreign national.

Employee restrictions

Are there any specific restrictions on a holder of employment permission?

Work visa holders are subject to restrictions as endorsed on the respective visa. Changes of role or employer require a change of the conditions or status of the respective visa, which must be lodged with the DHA or the South African representative abroad depending upon the category thereof.

The holder of a work visa may only work for the employer endorsed thereon and any change in the employer is subject to application and approval by the DHA.

In terms of a May 2015 directive, the holder of an ICT, critical skills, general work or business visa may now undertake part-time studies with institutions of higher learning without applying for a secondary study endorsement. However, the full-time study will require a formal application to the DHA and secondary endorsement of permission to study on the work visa before commencing such studies.

The holder of a critical skills work visa, initially issued in the absence of an offer of employment, must secure employment and provide proof thereof to the DHA within 12 months of the issuance of the critical skills work visa. The DHA must be notified of any subsequent change in employment and the foreign national must confirm that he or she is still performing the role or working within the field for which the critical skills visa was originally issued.

The holder of a general work visa issued after 26 May 2014 is no longer required to confirm continuing employment within six months after the issuance of the visa and every 12 months thereafter. However, holders of general and quota work permits issued before 26 May 2014 are advised to continue to meet the previous 12-month confirmation of employment notification requirement to the DHA as required under the previous legislation.

Dependants

Eligibility

Who qualifies as a dependant?

Dependants include members of the foreign national’s immediate family (spouse and biological and adopted children).

Spouse is defined as a person who is a party to a marriage, as defined in the Act, including permanent heterosexual and homosexual relationships as prescribed.

Immediate family is defined as persons within the second step of kinship, where marriage or a spousal relationship is counted as one such step, but any common antecedent is not so counted.

The Act does not define a dependant or child; however, for a dependant visa, a child should be financially and emotionally dependent upon the main applicant. In practice, a child will be any person under the age of 18, or older if studying.

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

All foreign nationals (including dependants of a work visa holder) intending to work in South Africa are required to apply for the respective work visa category in their capacity.

Foreign national spouses or partners of South African citizens or permanent residents may apply for permission to work subject to the continuing existence of the good faith spousal relationship.

Foreign nationals intending to take up studies within South Africa must obtain a study visa to legally study within South Africa.

Applications for conversion from a visitor’s visa to a study visa may be submitted within South Africa subject to the discretion of the DHA. Study visas may now be issued for the duration of study (as opposed to annually) subject to a maximum limit of eight years for primary schooling and six years for secondary schooling (the study permit for a dependant will traditionally be limited to the maximum duration of the temporary residence visa granted to the main applicant).

Access to social benefits

What social benefits are dependants entitled to?

There are no prescribed social benefits available to foreign nationals.

Other requirements, restrictions and penalties

Criminal convictions

Are prior criminal convictions a barrier to obtaining immigration permission?

All foreign nationals applying for temporary residence visas exceeding three months in duration and permanent residence permits must submit a police clearance certificate for all countries they have lived in for 12 months or longer since the age of 18.

Depending upon the nature of any criminal conviction, the adjudicating officer will determine whether such a conviction will result in the application being declined.

Penalties for non-compliance

What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?

The penalties for non-compliant employers and foreign nationals include deportation, fines and imprisonment and have been significantly increased in terms of the new Act.

Current practice in South Africa (effective from May 2014) will result in foreign nationals overstaying the validity period of their temporary residence visa being fined and declared undesirable for periods of one year (overstaying for less than 30 days) or five years (overstaying for 30 days or longer).

The increased penalties have been implemented to deter non-compliance with the Act.

Language requirements

Are there any minimum language requirements for migrants?

No.

Medical screening

Is medical screening required to obtain immigration permission?

All foreign nationals applying for temporary residence visas exceeding three months in duration and permanent residence permits must complete and submit medical and radiological examination reports for the processing of the respective application.

The results of such examinations may influence the outcome of a foreign national’s application – the DHA reserves the right to consult with the Department of Health in such cases.

All foreign nationals travelling from or through a yellow fever endemic area are required to submit proof of yellow fever vaccination.

Secondment

Is there a specific procedure for employees on secondment to a client site in your jurisdiction?

Secondments are acceptable in the standard situation where the sending and receiving entities are members of the same group structure.

However, in the scenario where the sending entity wishes to second a resource directly to the client (where such client is not a member of the corporate structure of the sending entity), additional requirements may be required subject to the discretion of the Immigration Department.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Key developments of the past year40 Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction? Draft white paper

In March 2017, the DHA published a draft white paper on international migration in South Africa, containing definitive proposals to guide a comprehensive review of immigration and related legislation. Some administrative elements of the new policy were implemented immediately, with major amendments (requiring legislative amendment) to be introduced following due process.

The legislative amendments have not yet been implemented. However, they could take place shortly due to the appointment of Dr. Pakishe Aaron Motsoaledi as the new minister of the DHA on 30 May 2019.

The legislative amendments proposed under the draft white paper continue to be closely monitored to assess the immediate and future impact on the importation and retention of key skills to the South African labour market and are subject to an ongoing debate.

E-visas

E-visas are the proposed advancement to current technology used by the DHA to boost tourism to South Africa through the use of online capturing of visa applications and applicant biometrics abroad and locally.

The system is expected to allow for centralized adjudication of work visas by 2020/2021.

The system is likely to be rolled out at a South African embassy abroad or a local Home Affairs Office in due course; however, a set date is yet to be determined. The advantages of the system will be a standard set of documentary requirements for visa applications with reduced discretion during adjudication; however, centralized adjudication would also result in additional administration and delayed processing times.

It is still unclear whether the ability to complete the online visa applications will be restricted to applicants only or whether immigration service providers will have the ability to continue supporting applicants with this step of the visa process.

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