Reasons Why the Act and New Regulations are Unworkable

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Since the passing of the new Immigration Regulation Act of 2014 here in South Africa, there has been much debate as to whether it brings more solutions than it does problems. However some parts of the new Immigration Act are simply unworkable, and here is why:

BUSINESS VISA

s.15(1) of the Act
“Subject to subsection (1A), a business visa may be issued by the Director-General to a foreigner intending to establish or invest in, or who has established and invested in, a business in the Republic in which he or she may be employed, and an appropriate visa for the duration of the business visa to the members of such foreigner’s immediate family.”

Regulation 14 sets out the requirements for a business visa and stipulates that an applicant must provide a certificate issued by either a chartered or professional accountant confirming that the applicant has a specified cash or capital contribution available to be invested into the business.

Regulation 14(1)(a): “an amount….as determined from time to time by the Minister, after consultation with the Minister of trade and Industry, by notice in the Gazette.”

Problem: the prescribed amounts have not yet been published.

Regulation 14(1)(c) “a letter of recommendation from the Department of Trade and Industry regarding the feasibility of the business; and the contribution to the national interest in the Republic”

Problem: no indication as to what information needs to be submitted to the Department of Trade and Industry to obtain the required letter of recommendation and the procedure to obtain this.

What is the meaning of National Interest and what criteria is to be satisfied to meet this?


RELATIVES VISA

s.18(1) of the Act
`’A relatives visa may be issued for the prescribed period by the Director-General to a foreigner who is a member of the immediate family of a citizen or permanent resident, provided that such citizen or permanent resident provides the prescribed financial assurance.”
Regulation 17(2) states that the financial assurance contemplated in s.18(1) of the Act shall be an amount determined by the Minister by notice in the Gazette.

Problem: the prescribed amount has not yet been published.

 

SPOUSE PERMIT

Reg3 (2)(a)(i) ..Relationship has existed for two years before date of application

3(2)(d) documentation to prove financial support

Problem: Decision of CC in Dawood v Minister of HA any law that purports to limit the right of families to cohabite and reside together, violate the rights to Dignity and Equality, therefore are inconsistent with Constitution.

 

GENERAL WORK VISA

s.19(2) of the Act
Regulation 18(3) states that an application for a general work visa shall be accompanied by a certificate from the Department of Labour confirming a number of things.

Problem: as far as we are aware, there has been no official guidance as to the procedure for obtaining certification from the Department of Labour (other than information found here: http://www.nwivisas.com/nwi-blog/south-africa/new-labour-requirements-for-work-permits-in-south-africa )

 

CRITICAL SKILLS WORK VISA

s.19(4) of the Act
“A critical skills work visa may be issued by the Director-General to an individual possessing such skills or qualifications determined to be critical for the Republic from time to time by the Minister by notice in the Gazette”

Problem: no list of critical skills has been published.

 

RETIRED PERSON VISA

s.20 of the Act
The Act refers to a “prescribed minimum payment” and “prescribed net worth”.
Regulation 19 states that the minimum payment and minimum net worth shall be an amount “determined from time to time by the Minister by notice in the Gazette.”

Problem: the prescribed amounts have not yet been published.

 

PERMANENT RESIDENCE

EXTRAORDINARY SKILLS OR QUALIFICATIONS

s.27(b) of the Act~
s.27(b) of the Act refers to an applicant who possesses “extraordinary skills or qualifications.”
However, Regulation 24(4) makes no mention of the words “extraordinary skills or qualifications” and instead refers to the relevant “critical skills” category.

Problem: inconsistency between the terminology of the Act and the Regulations.

Problem: no list of critical skills has been published.

BUSINESS

s.27(c) of the Act
s.27(c) of the Act, dealing with an applicant who wants to establish a business in the Republic, refers to a “prescribed financial contribution.”

Regulation 24(5) refers to “an amount….as determined from time to time by the Minister, after consultation with the Minister of trade and Industry, by notice in the Gazette.”

Problem: the prescribed amount has not yet been published.

s.27(c)(i) of the Act
s.27(c)(i) states that “the Director-General may waive or reduce such financial or capital requirements for businesses prescribed to be in the national interest.”

Problem: the categories of business prescribed to be in the national interest have not yet been published.

Regulation 24(7) imposes Critical Skills Requiremtns for PR applications under business Category

RETIREMENT

27(e) of the Act
s.27(e) of the Act refers to a “prescribed minimum payment” and “prescribed net worth”.
Regulation 24(12) states that the minimum payment and minimum net worth shall be amounts “determined from time to time by the Minister by notice in the Gazette.”

Problem: the prescribed amounts have not yet been published.

MINIMUM NET WORTH

s.27(f) of the Act
s.27(f) of the Act refers to a “prescribed net worth” and “prescribed amount”.
Regulation 24(13) states that the net worth and the amount shall be amounts “determined from time to time by the Minister by notice in the Gazette.”

Problem: the prescribed amounts have not yet been published.

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