THE NEW IMMIGRATION AMENDMENT ACT

South Africa’s immigration rules will soon change paradigmatically.  The Immigration Amendment Act was published by the President on the 26th August 2011, however it has yet to commence (“IAA”). The current Minister Dr Nkosasana Dlamini Zuma, like her predecessors, is bent on stamping her footprints into the annals of legislation by enacting laws in her own image.  Perhaps clever, ill-advised, autocratic, or imprudent, the Minister assumed office on 10 May 2010 on an anti-corruption platform.  The Department of Home Affairs (DHA) suffered from a festering toe infection of corruption, and the minister immediately began plotting her campaign, not to treat a toe infection, but to amputate the entire leg.

As a matter of fact, the DHA began to transform itself along this trajectory from March / April 2010, with the appointment of seven new Immigration Directors throughout the country, and the centralization of all decision-making on temporary residence permit applications on 28 May 2010.  The Minister began making public statements that she did not want “Immigration Practitioners” on the premises of the DHA, enabling the Minister and her DHA management team to build fortress walls around themselves fortifying their internal machinations against public challenge and attack.  These observations became widespread and the subject of intense discussion amongst Immigration Practitioners and Lawyers.

Against this background two amendments to the Immigration Act of 2002 are compellingly important:

Section 10(6) of the current Act allows any foreigner in South Africa to change the condition of his current temporary residence permit, or to change status from one type of permit to the other, in South Africa without having to do so from his home country.  Even a refugee seeker who resides in South Africa on a temporary Asylum Seeker permit, or as a refugee, in terms of the Refugees Act, may apply in South Africa for a temporary residence permit in terms of the current Act.  This has provided foreigners with immense flexibility, not only for convenience sake, but also because foreign missions tend to be unpredictable and difficult to work with in relation to the application of immigration rules.

The IAA significantly curtails this freedom by requiring a foreigner on a visitor or medical permit to seek the permission of the Minister under exceptional circumstances prescribed by her, to change the conditions of his permit or to change status while in South Africa.  An obvious difficulty comes to mind.  A foreign spouse of a South African, for instance, would first have to seek the permission of the Minister to change her status to that of relative permit or long-term visitor permit with work authorization.  It appears from the IAA’s legislative formula that it is driven by the presumption that decisions to relocate to South Africa on a long-term basis should be made prior to entering South Africa, since most foreigners are deemed to have entered South Africa as visitors under false pretenses, leading to systemic abuse of section 10(6).  This amendment seeks to reverse this abuse by forcing foreigners to make their decisions prior to entering South Africa physically thereby leading to a restoration of systematic integrity.

However, should foreign spouses and minor dependent children of South Africans not obtain authorization to change status while in South Africa unobstructed, we have no doubt that further litigation will ensue, perhaps to the Constitutional Court, bringing us back to those battles waged over ten years ago (in relation to the rights of foreign spouses to remain in South Africa while they obtained work authorization).

The second change is truly revolutionary.  Section 10(2) of the current Act is amended by requiring every foreigner to apply for temporary residence permits in South Africa or abroad in person.  This change will disallow any temporary residence permit application to be submitted by any 3rd party, including Immigration Practitioners and Attorneys.  The Minister, by her public statements, has engendered the rank and file within the DHA with a discernable suspicion toward immigration representatives.  This amendment gives legislative expression to this suspicion.

From a safety and security perspective, in light of the Minister’s anti-corruption stance, she has identified the immigration representative as a corruptive source.  The Minister has identified the physical non-appearance of many foreign applicants at the time their temporary residence permit applications are submitted to the DHA, as a major contributor to identity fraud.  While historically all permanent residence permit applications require to be submitted with the physical presence of the applicant, this has never been the case for temporary residence permits.  The Minister simply wants to close the gap and make it difficult for misrepresentation and identity fraud to perpetuate itself through the actions of intercessors.

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A WAKE UP CALL TO ALL FOREIGNERS IN POSSESSION OF EXCEPTIONAL SKILLS PERMITS

The Immigration Amendment Act (IAA) seeks to repeal section 19(4) of the current Immigration Act which provides for exceptional skills work permits.  In effect once the IAA becomes law, exceptional skills work permits will no longer be available to foreigners.  The exceptional skills work permit category will be replaced by the “critical skills work permit” category.

The IAA conflate quota work permits and exceptional skills work permits.  The resulting “critical skills work permit” will be available to foreigners possessing skills and qualifications “determined to be critical for the Republic from time to time by the Minister by notice in the Gazette.”   This has the following effect:

(i)            Foreigners who are in possession of rare and exceptional skills, who may well be world-famous and highly acclaimed in their fields, but who do not possess skills or qualifications which are determined to be critical for South Africa (as prescribed from time to time in the Government Gazette) will simply not be able to obtain work authorization on that basis.  The IAA seeks to restrict the inflow of foreigners who may well be skilled, but who possess skills or qualifications, or both, not indentified to be critical by the Minister.

(ii)           Any foreigner who is currently in possession of an exceptional skills work permit will most probably not be able to renew such permit for a further period.  Since exceptional skills work permits will no longer be available, such foreigner must either apply for another type of work permit (which may or may not be available to him or her) or must depart South Africa upon the expiry of such permit.  This may be a consequence that the drafters of the IAA did not anticipate.

Eisenberg & Associates would encourage any foreigner in possession of an exceptional skills work permit to apply for permanent residence prior to the promulgation of the IAA on the basis of extraordinary skills, which is exactly the same basis as exceptional skills.  In this way, the foreigner will be able to establish an immigration strategy based on current rules, even if the rules should change after the submission of the permanent residence permit application to the DHA.

THE NEW
IMMIGRATION AMENDMENT ACT continued…

From a policy perspective Eisenberg & Associates supports this amendment.  However, Eisenberg & Associates holds the following reservations:

(i)            Corruptive transactions have invariably taken place between DHA officials and members of the public directly.  There is no empirical evidence available suggesting that Immigration Practitioners or Attorneys have contributed to fraud or corruptive influence.  The contrary is true.  Rogue immigration practitioners and foreign criminal syndicates have been most conspicuous in perpetrating fraud on the DHA in relation to the obtaining of permits.  Therefore, prohibiting the intercession of Immigration Practitioners and Attorneys in the submission of applications to the DHA will not stem the tide of corruption, but may well contribute to it.

(ii)           Attorneys have been the most vocal critics of the DHA’s failings and dysfunctionalities.  Attorneys have lead the charge against the DHA in litigating against it and are therefore viewed by the Minister and the DHA as a “thorn in their sides”.  The attempted curtailment of intercession by professional immigration representatives (both “Immigration Practitioners” and Attorneys) may reflect a growing culture in Central Government to limit the right of individuals to be represented, thus limiting criticism of and legal challenges against the public administration for misfeasance.

(iii)          Notwithstanding the above, Lawyers will retain their professional standing and Eisenberg & Associates believes that the Minister and the DHA will continue to respect the right of foreigners to be represented by Attorneys in relation to the Immigration legislation, in the application of permits, in representations to both the Director-General and to the Minister, and in all appeals and review applications.  However, the IAA repeals section 46 of the Immigration Act which establishes “Immigration Practitioners” as a professional class of immigration representatives recognized by the DHA to represent foreigners in terms of the current Act, together with Attorneys and Advocates.  From the moment the IAA commences, Immigration Practitioners will cease to exist.  They will no longer enjoy any professional status in terms of the IAA because their registration with the DHA will lapse.  From a legal compliance perspective, only Attorneys and Advocates will retain their professional status and will retain their locus standi to represent any party, including foreigners.

(iv)         Any attempt by the Minister or the DHA to curtail the representation of foreigners by Attorneys or Advocates will most certainly be challenged on the basis that it will constitute unlawful and unconstitutional conduct