Chris Watters, Attorney

Member of Law Society of Northern Provinces Immigration, Nationality and Refugee Law Specialist Committee

The Immigration Amendment Act came into operation on 1 July 2005. Along with it came a new body of regulations, requirements – and forms. These have introduced a number of important changes for persons wishing to apply for work permits.

Mandatory requirements for all work permit applications now include providing police clearances, proof that the post has been properly advertised, verification of the applicant’s qualifications by the South African Qualifications Authority [‘SAQA’] and certification from either the Department of Labour or a salary benchmarking organization which confirms that the salary to be paid is reasonable for that post.

Some of the changes have generated significant problems. An immediate one is that employers may have followed a recruitment process which was entirely lawful prior to the Act being amended but which is now unlawful. In some cases exasperated employers have resorted to starting the recruitment process afresh. If that process is to be legitimate, there has to be a bona fide vacancy and all undertakings to the would-be employee have to fall away. Where the affected would-be employee has, for example, arranged to take their children out of school, sell or rent their accommodation or to ship their belongings and is now advised that the plans are, at best, as a result of ill-considered regulations, we can foresee those persons taking legal advice as to their options.

Another problem is the situation where the new Regulations to the Act create difficult or impossible hurdles to comply with. Section 32(1)(c) of the Act provides that an applicant can apply to the Minister for a waiver of that specific regulation – such as for advertising the post. However, good cause must be shown and the waiver must be granted before the applicant can even lodge the application. There are no guidelines as to what is ‘good cause’.

A related problem here is the time it takes to get decisions on these applications. Currently, as many who have tried communicating with the Ministry of Home Affairs or her Director General will affirm, there is frequently a suspicion that these offices are under the impression that they do not have to comply with the standards set by Batho Pele or with Section 195 of the Constitution.

Another hurdle arises should the application for a waiver be refused. Section 8(4) provides that “any decision in terms of the Act” (other than to refuse entry or to “find” a person to be an illegal foreigner) can be taken through an internal appeal process. This provides for an appeal to the Director General and then, if unsuccessful, to the Minister. But a waiver decision is apparently removed from this appeal process because once can scarcely appeal to the Director General against the decision of the Minister or to the Minister against her own decision!

A further challenge to expatriate couples arises where they are not married. Regulation 3(b) requires that where the relationship was concluded in a foreign country, the couple must provide “official recognition” of their relationship from that country. Should this be impossible the applicant will need to seek a waiver of that provision too with all the problems that entails.

The regulations also prescribe that the applicant’s foreign qualifications have to be evaluated by SAQA – irrespective of how relevant these are to the post being applied for. To do this, the applicant has to send certified copies of the qualifications to SAQA in Pretoria. As time consuming and expensive as this may be, it only gets exponentially worse if the applicant is currently living in another country.

Another major mandatory hurdle is that the applicant has to get a police clearance from every country he or she has lived in for a year or more since they turned eighteen. This clearance has to accompany the application. Previously the Regulations provided that the Department would accept proof that the clearance had been requested and would allow the applicant twelve months to supply the clearance. This was in acknowledgment that in some countries it can take a long time to get a clearance, if at all. Again the only way to get round the problem if the request takes time, is to apply for a waiver of that requirement too.

Despite these concerns, a potentially larger problem for some employers is whether applications for work permits can still be submitted from inside SA. What is contemplated here is the situation where the would-be applicant enters the country on one or other temporary residence permit and at some later stage applies from inside the country to change that permit to a work permit.

Prior to the amendment of the act, the position was that one could apply from within the country to amend a condition of your permit or to amend your status. The Department’s practice over the past eighteen months in particular has been to determine whether or not when entering the country on a visitor’s permit the applicant had misrepresented the purpose of the journey. Where the applicant had entered SA claiming to be visiting (a necessary corollary of getting a visitor’s permit) for two or three months and had then applied for a work- or business permit the very next day (or so soon thereafter…), the Department would invariably refuse the application and the applicant would be required to leave and to apply afresh from outside the country.

But neither the Act nor the Regulations have actually been materially amended in this respect. The only provision in this regard appears at section 10(6) of the Act. This states that a foreigner “… may apply to change his or her status or the conditio9ns attached to his or her temporary residence permit while in the Republic”. The only restriction imposed in the Regulations is that if applying from inside SA, such an application must be submitted not less than thirty days prior to the expiry date of the existing permit. No other limitations or conditions for such applications are even hinted at.

However, the so-called ‘change of purpose’ application form contains an important cautionary on the front page. Foreign nationals are warned that they must apply for the correct permit prior to arriving in SA and that the applicant needs to have “good cause” necessitating the change-of-purpose application. There is however no authority in the Act or Regulations for the ‘good cause’ requirement. Moreover, the Act does not require that the reason has even to be a good one or that any reason is needed at all. The Act provides merely that a person has the right to apply from inside the country. The problem however is that this ‘requirement’ constitutes a ‘reality’ which will be applied by the Department’s officials.

In the absence of some urgent revisions of the current Regulations, employers may well find that it is going to take considerably longer than usual to apply for a work permit for expatriate staff.