On 1 July 2005 the Immigration Amendment Act of 2004, together with new Immigration Regulations, came into operation. Unlike on previous occasions, these new rules were published and came into force on the same day, giving no prior notice or opportunity of preparing for the changes. Adding to the gravity of this sudden entry, the new regime came into operation in an incomplete form.
As a consequence, South Africa does not possess a functional employment based immigration system. A closer examination of the Act and its regulations reveal that the three existing employment-based permit categories are inoperative.
The temporary work permit scheme consists of quota work permits (section 19(1)) and general work permits (section 19(2)).
Quota work permits are inoperative because they rely on the existence of specific professional categories and occupational classes determined by the Minister at least annually with quotas for each such category and class. Since the Minister has not made these determinations or prescribed the quotas therefor, quota work permits cannot and do not operate. While the Cape Town Regional Office, for instance, has accepted a number of quota work permit applications just after 1 July, it has refused to process them until further guidance is received from Head Office.
General work permits may only be granted to a specifically defined class of foreigners: to those “not falling within a category or class contemplated” in section 19(1). Since there exist no such categories or classes, the class to which general work permits may be granted remains undefined. While the Department does in practice adjudicate general work permit applications under the present scheme, it does so unlawfully, perhaps as an “accommodation” or out of reluctance to appreciate the policy underpinning of section 19(2) and the plain meaning of the statute. This is confusing, given the Department's refusal to accommodate quota work permit applicants on the only quotas published, albeit on 6 December 2002.
Applications for permanent residence based on offers of permanent employment (section 27(a)), are by the same token, also precluded. Section 27(a)(ii) provides that such a permit may be issued only if “the application falls within the yearly limits of available permits prescribed for each sector of industry, trade and commerce…” No such yearly limits have been prescribed and therefore no applications under this sub-section could possibly comply with statutory expectations.
South Africa is the only constitutional democracy in the world without an operational employment-based immigration system. This may be a temporary lapse, but it appears that not even the Department's management has come to realize the severity of the current impasse.
All permanent residence applications
currently pending at Home Affairs regional offices throughout South Africa
have been called to Head Office, Pretoria, with effect from 1 June 2005 for
consideration and adjudication (Directive No.3 of 2005). A special committee has apparently been convened for these purposes, chaired by the Deputy-Director General. In reality, however, while approximately 700 applications have been received by Head Office in terms of this directive, the referent committee is not fully functional. This means that applications which may have been pending for more than a year may be substantially delayed in their adjudication.
