By Chris Watters

Probably one of the most predominant difficulties currently being experienced by applicants relates to the knock on effect of the centralization of permanent residence permit decision making, which came into effect on 1 June 2005 when the Minister of Home Affairs withdrew the delegation of this function from the regional offices and Consular Missions worldwide and centralized this function at Head Office of the Department at Pretoria.

Notice was only given of this intention on 1 May and very little thought was given to capacitating Head Office of the Department with the requisite expertise and experienced officials necessary to conduct this very important task.

What has in essence happened is that applications are now being sent to Head Office where they are bottlenecking the system and at time of writing this article I have been unable to ascertain whether any single permanent residence permit application has been approved since 1 June 2005.

Further compounding the situation is that the person delegated to deal with the task, the Deputy Director-General of Immigration, Mr. Arthur Fraser was suspended from duty recently together with two Chief Directors in the National Immigration Branch pending certain investigations.

In a breaking news development it has become apparent that the Minister of Home Affairs may be taking action to remedy the aforementioned situation by delegating powers back to the regional offices of the Department of Home Affairs and to the Consular Missions of the South African Government, to finalise all permanent residence applications lodged prior to 1 July 2005. Head Office of the Department will then process all applications lodged in terms of the Immigration Amendment Act and the new Regulations lodged post 1 July 2005. A further report on this important topic will appear in the next edition of SA News.

A further delaying factor surrounds the fact that SAQA evaluations of qualifications are now taking four to six weeks or more, even on a priority evaluation basis, because of the flood of requests being received by SAQA.

Another factor causing delays relates to the requirement in the Amendment Act and new Regulations that Police clearance certificates must be filed at the time of the application in respect of all countries in which the prospective immigrant has resided since their 18^th birthday, for periods longer than one year. The United Kingdom, by way of an example, takes anywhere between 45 and 90 days to produce a clearance certificate and the Canadian Government up to 7 months to produce a clearance. It is of the utmost importance therefore to ensure that the Police clearance certificate is applied for timeously. It was possible prior to 1 July, 2005, when the new Regulations came into force, to file an affidavit in lieu of a Police clearance certificate. Under the new Regulations this is not possible and the only possibility that does present itself as an alternative would be to apply to the Director-General for a waiver of the requirements. How long a waiver application will take to finalise also remains anyone’s guess.

The Department of Labour in various regions has taken differing viewpoints on whether it can, or whether it will be able, in terms of capacity, to deal with reports required in respect of various categories of work permits. It is a requirement of Regulation 16 that a certificate from the Department of Labour be procured stipulating the average salary earned by employees occupying similar positions in South Africa and thereby certifying that the foreign national job applicant will not be earning remuneration less favourable than that being offered to South African citizens or permanent residents in similar positions.

The Department of Labour in Gauteng has refused to take in such applications on the basis that the alternative position set out in Regulation 16 should be utilized as the Department of Labour simply does not have the capacity or resources to deal with such certifications. The alternative provision is that a job applicant must file an extract from the database of a salary bench marking organization stipulating the average salary earned by employees occupying similar positions in South Africa. This obviously impacts on the costing of a work permit application as such bench marking exercise would have to be for the cost of either the applicant or the prospective employer.

On a positive note, it is the writers opinion that in terms of temporary residence, and specifically regarding work permits that are being lodged from within South Africa, that there has been a definite improvement in service delivery within the regional offices of the Department of Home Affairs despite the long queues and inconvenience caused thereby. However, the same cannot be said for certain Embassies and High Commissions of the South African Government.

With the advent of the South African Citizenship Amendment Act in September last year an increasing number of South Africans in foreign countries, either applying for citizenship of their host country or wishing to apply for retention of South African citizenship or exemption from the loss of South African citizenship status, there has obviously been an increase in the amount of Determination of Status applications being processed by the Citizenship Division of the Department of Home Affairs and this has precipitated considerable delays in the processing of these applications.

It is hoped that once the dust begins settling on the new Regulations that we will see a smoother application of the Immigration Amendment Act and Regulations and hopefully shorter turnaround times, especially in the case of permanent residence applications.

You can also avail yourself of a free assessment of viability of immigration to South Africa by visitingwww.immigration-sa.com.

Julian Pokroy is one of South Africa’s leading immigration specialist Attorneys and currently heads the Law Society of South Africa’s Immigration Law Specialist Committee and is a member of the Immigration Advisory Board to the Minister of Home Affairs.

To view articles published by the author visit our website on www.immigration-sa.com or for further information contact Julian Pokroy on e-mail immigration@iafrica.com or telephone 00 27 12 460-3410 or on mobile 00 27 82 558 5002.