Immigration regulations will impede economic growth

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Since the Draft Regulations were published on 17 February, the public comments by the Minister of Home Affairs have focused on the bigger picture with respect to South African immigration and the need for a comprehensive review. Apart from offering a patchwork solution to a range of largely operational issues within Home Affairs, there are a number of flaws in the Draft Regulations that violate the South African Constitution and may be the cause of high-level litigation in the near future.

Foreign spouses

Most prominent of these issues is the new provision with respect to foreign spouses who will have to prove a five year relationship before making applications, contrary to the judgements of the Constitutional Court in Dawood Shalabi vs The Minister of Home Affairs and other similar cases.

The appointment of a private service provider to operate the Home Affairs front offices, who will charge additional fees for services as a monopoly operator without the legislative backup, is also likely to be a problem.

Employers and immigrants have been waiting for the Draft Regulations with anticipation. Under the new level of bureaucratic administration applicants will endure a cumbersome process to obtain a certificate from the Department of Labour for a General Work Permit indicating that they have complied with a whole list of requirements. However, concerns have been raised that this is likely to be too drawn-out for most investors due to the capacity of the Department of Labour to implement a speedy and efficient process.

Omission of certain sectors

"The Corporate Permit application process, which has been problematic since the Department of Labour unlawfully imposed requirements outside of the current legal framework, will be worsened by the fact that only two sectors - mining and construction - have specific requirements; the other sectors have simply been omitted," Isaacson adds.

"The Draft Regulations perpetuate the incorrect interpretation of the legislation with respect to spouses by requiring these applicants to apply for relatives' permits, which are only intended for applicants who are blood relatives. There are no requirements for spouses accompanying SA citizens and permanent residents, which is a serious omission and creates uncertainty as to how an application is to be lodged without requirements. A glaring error is that a permit for a foreign spouse can only be applied for once the couple can prove a relationship for five years, which goes against long-standing Constitutional Court rulings with respect to this category of persons," he says.

The Scarce Skills list has not been published for comment, leaving most economic sectors insecure as to what this might contain, and whether their sectors will be covered by this list.? The elimination of advocates, lawyers and practitioners follows on Home Affairs' view - which Isaacson says is unconstitutional - that applicants do not require representation and Home Affairs will not allow applicants to have representation.

Non-experts cause problems

"This development will open up the advisory market to non-experts who have caused problems to Home Affairs in the past. It is believed that this aspect will be contested in the courts in the near future. It is understood that the service provider appointed by Home Affairs to manage the Immigration Offices will be charging service fees to the public, which is not permitted in the Regulations and is also unconstitutional," he continues.

The Draft Regulations fail to include transitional provisions for people who are on one type of permit under current law and may need to apply for an extension of their stay in SA, assuming a legitimate purpose. It is expected this will cause continuity issues with respect to existing skilled personnel, leaving both the employers and their applicants in a tight corner. ?"South Africa will be the one to suffer if we do not maintain this continuity," concludes Isaacson.