Immigration bill process reaches critical stage

Before the proposed amendments can be implemented, government will have to develop regulations defining the "nuts and bolts" of how the new laws will work in practice.

The process is now at a critical stage, with industry players waiting with trepidation to see how various issues will be addressed and what form the public consultation process will take.

Following objections from practitioners and a host of others, certain changes were made to the draft bill before it was submitted to the National Assembly, but some areas of serious concern have not been addressed.

Loss of status

One is the proposed repeal of Section 46, which defines which professions may legally assist applicants. This change was proposed without consultation with the industry and, if passed, will result in advisory professionals losing their status.

The omission will place onto the market a deregulated industry, and the public will have to be more vigilant in finding reputable practitioners. In the light of the pending legislation, the Forum of Immigration Practitioners South Africa (FIPSA) is taking steps to become a self-regulatory professional body. Practitioners will be required to register and write exams.

FIPSA is currently setting up the process to register as a professional association with the South Africa Qualifications Authority (SAQA). However, this will require lots of work, time and effort, and could be a long process as SAQA has just revised its requirements and procedures.

However, the impact will be that practitioners will continue to act on behalf of their clients. While the provisions of the bill require visa applicants to submit applications in person or to be present at the time of submission, practitioners will use a general power of attorney to act on clients' behalf. We recommend that those seeking immigration services use only experienced practitioners who are registered with FIPSA to avoid the risk of unscrupulous practices. Registered practitioners are listed on the association's website.

Which skills will deemed critical? How will that be determined?

For government to develop regulation in relation to certain permits will be a major process. Home Affairs' proposal to collapse the existing exceptional skills permit and the quota list into one new permit called the critical skills permit, for example, will entail determining which skills are critical to the development of the South African economy.

How this will be determined is the big question because South Africa does not have a skills baseline. Research has never been done to determine which skills we currently have in the economy, which we are producing at present, and which we will require for the future. According to the Department of Higher Education and Training, which is responsible for "The human resource development strategy, Version 3, for South Africa", the process of establishing a skills baseline will be a three-year project.

It is clear that South Africa is going to continue to need skilled people from other countries for the foreseeable future, as our economy has sectors that are growing despite world circumstances, and we are not producing sufficient skills at present. What will happen in 10 or 20 years' time we do not know because economies are dynamic and change all the time.

What is a 'critical skill'?

The move to introduce a critical skills permit has surprised everyone, including other government departments. All the labour analysts I have spoken to have said they do not know what a critical skill is because it is a newly invented South African term.

A critical skill differs from an exceptional skill in that the latter does not fall into a specific industry sector: it is the applicant's skill that has to be exceptional. The person could be an outstanding photographer, designer, engineer, author, lecturer or publisher, for example. His skill has to be verified by a government body overseas or in South Africa.

From the time that the new regulations will be implemented, brilliant people who might come in as consultants to work independently for different companies will no longer be allowed to follow the exceptional skills permit route. They will have to apply for a critical skills permit, with the problem again arising as to which skills will be viewed as critical.

The bill proposes that the Minister of Home Affairs should decide this. We do not have the confidence that government has the capacity to carry out the detailed studies required to put such a list together, particularly in a hurry.

The bill also proposes that visitor and medical permits can't be extended while an applicant is in South Africa, without special permission from the Minister. It was originally proposed that this should apply to all permits but, with lobbying and input from many bodies, the section has been limited to tourist visitor permits and medical permits.

There may be some abuse, but...

Home Affairs' rationale is that these permits are being abused, as some people come into the country saying they are here for medical treatment or that they are on holiday, then look for jobs and apply for work permits.

While there may be abuse, a major problem is that the proposed amendment will also affect family members accompanying applicants who have been granted permits to work here. We hold the view that an applicant's spouse or children - for example, a four-year-old child who will need to convert to a study permit before starting school - can't be subjected to the same insinuation of abuse as a tourist who comes in and looks for a job.

In developing regulations, Home Affairs will also have to deal with business permit categories, defining the sectors in which South Africa wants to encourage investment.

The department will have to publish a list of prohibited businesses - a concept foreign to our laws because a registered legal business in SA can't be classified as prohibited. While we do not support a loose interpretation of the law that would allow the setting up of sleazy businesses in South Africa, we believe it should be a policy issue, rather than a constitutional one, to keep business investments clean and develop the economy positively. In our view, government could easily say at trade and industry level that a permit application can't be recommended because it does not contribute to the South African economy.

An intelligent software management system

In the event that Home Affairs should simplify immigration processes and procedures before the bill is passed into law, my company, Global Migration, has developed an intelligent software management system that can be licensed to companies who wish to take the immigration function in-house. This would enable companies to bring in a big team of experts - for a Gautrain-like project, for example - at a reduced cost.

However, the training of a designated "expert user" on site would be essential, as particular knowledge, skills and focus are required for immigration applications to succeed. As this area is not covered in HR training courses and is often not a core skill for companies, we would provide ongoing support for the designated person.

We are also developing an optional module that will allow companies to manage the whole relocation process online, from the airport pick-up to arranging housing accommodation and schools, setting up bank accounts, and obtaining veterinary clearance certificates for pets - factors that can often make or break an assignment.

Our program will enable companies to take over the whole immigration function if they wish, using available technology to roll out the process and enabling them to give immigrants support even before they arrive.

The program is already available in demonstration form. When the new government regulations are published, we will make one or two changes to meet the new requirements and will have the system up and running within a week.