Immigration South Africa - Julian Pokroy Immigration Law Attorneys

This article was first published in HR Future in July 2003

BREAKING NEWS

Minister of Home Affairs establishes and inaugurates new Immigration Advisory Board (the “IAB”)

The IAB was inaugurated by the Minister of Home Affairs at Parliament on Monday the 19th May 2003 after Cabinet had approved the appointment of the Board members the previous week.

The IAB has been constituted in order to advise the Minister in respect of the following:

The contents of Regulations made in terms of the Immigration Act;
The formulation of policy pertaining to immigration matters;
The implementation of immigration policy by the Department of Home Affairs;
Reviewing of decisions of the Department of Home Affairs in terms of Section8 (which deals with adjudication and review procedures) when requested to do so by the Minister;
Such other matters relating to the Act on which the Minister of Home Affairs may request advice.

The IAB is unique in that it consists of a broad spectrum of civil society (5 persons) experts who are all leaders in their respective fields of immigration law and policy, representatives (4 persons) appointed by the Minister on grounds of their expertise in administration, regulatory matters or immigration law, control, adjudication or enforcement.

Further representatives from each of the following Government departments are also appointed to the Board:

Trade and Industry
Labour
Tourism
Finance
Safety and Security
Revenue Services
Education
Foreign Affairs
Defence
The Director General of Home Affairs

The IAB has been appointed for a period of four years and has already been tasked with dealing with issues surrounding the Regulations and other issues.

We will attempt to bring you news of the workings and the function of the IAB as its work progresses.

Note: At the time of writing this article the author’s appointment to the IAB has been approved by the Cabinet.

Latest news on the Constitutional Court appeal by the Minister of Home Affairs

The appeal by the Ministry of Home Affairs against the earlier Cape High Court judgement, reported in previous articles came before the Constitutional Court for argument on Tuesday the 20th May 2003.

The argument was largely technical and the Court has reserved judgement in the matter, indicating that it is a matter of urgency and all efforts will be made for the judgement to be handed down shortly.

By the time of publication of the July edition it may well be that judgement has already been handed down and we will report in the August edition on what has transpired.

The importance of this judgement is that it could result in the Regulations of the 21st February 2003 being set aside and placing us in the unusual position of the Immigration Act having kicked into operation and having to operate along side the Regulations of the Aliens Control Act.

An update of the situation will follow in the next article.

Work Permits

In this month’s issue we will be dealing with three work permit categories. These are general work permits, exceptional skills permits and intra company transfer of skilled/key personnel.

General work permit

Section 19(2) of the Act provides that a work permit in this category may be issued to a foreign national, possessed of a written and time specific work offer, in line with his/her skills and qualifications and which further complies with the following requirements:

The prospective employer would have to show all efforts made by it to obtain the services of a South African citizen or resident which shall include, but not be limited to, advertisement in the national print media. It will be necessary for a copy of the original advertisement to be attached to the application. The employer will also have to give detail of all citizens and/or residents who applied for the position and furnish reasons why they did not qualify for the position.

Note : The requirements in respect of advertisements and categories of employment which do not require advertising are set out elsewhere in this article.
A Chartered Accountant must certify that the terms and conditions under which the employer intends employing the foreign national applicant, including salary and benefits are not inferior to those prevailing in the relevant market segment for citizens and residents, taking into account applicable collective bargaining agreements and other applicable standards, as recorded by the Department of Labour, if any provided that;
- A copy of the Chartered Accountant certification shall be conveyed to a prescribed office of the Department of Labour; and
- Such Chartered Accountant certification shall lapse if it is objected to for good cause by such office of the Department of Labour within fifteen calendar days of its receipt.

The prospective employer of the foreign national must produce independent and reliable certification of the foreign applicants relevant skills, qualifications or experience and a statement explaining the correlation between the qualifications and requirements of the position and such foreigners relevant skills, qualifications or experience, which certification may be included in the certification by the Chartered Accountant referred to above.

The prospective employer must commit to notify the Department of Home Affairs when the foreign national applicant is no longer employed by the company or is employed in a different capacity or role; and
The prospective employer must submit a certification from a Chartered Accountant setting out the job description of the foreign national applicant and certify that the position exists and is intended to be filled by such foreigner.

Exceptional Skills Work Permit

Section 19(4) of the Immigration Act provides that an exceptional skills work permit may be granted to “an individual of exceptional skills or qualifications” to whom an offer of employment of specific duration has been made and where the following requirements have been complied with:

A letter has been obtained from a foreign or South African organ of state, or from an established South African academic, cultural or business body, confirming the foreign nationals exceptional skills or qualifications. An evaluation by the South African Qualifications Authority (SAQA);
Testimonials from previous employers (if applicable);
A comprehensive Curriculum Vitae, supported, wherever possible by letters, certifications or any other applicable documentation;
Any other proof to substantiate exceptional skills or qualifications such as publications and testimonials.

The real test in this category is whether the skills of the applicant are available at all in the job market in South Africa.

Intra Company Transfer

Section 19(5) of the Immigration Act deals with intra company transfers which allow the issuance of work permits in this category to a foreign national applicant who is employed abroad by a business operating in South Africa in a branch, subsidiary or affiliate relationship and who for by reason of his/or employment is required to conduct work in South Africa for a period not exceeding two years.

The requirements in this category are the following:

A Chartered Accountant acting on behalf of the employer must certify that the employer “needs to employ” such foreigner within South Africa. This certification must also set out the foreigners job description.
The employer must give an undertaking that it will take “adequate or prescribed” measures to ensure that the foreigner will at all times comply with the provisions of the Immigration Act coupled to an undertaking to immediately notify the Department of Home Affairs if it has reasons to believe otherwise; and
The employer furnishes the prescribed financial guarantees to defray deportation and other costs, should this become necessary;
A letter from the international concerned must be provided confirming that the foreign national will be transferred from the office abroad to a branch/subsidiary or affiliated South African company;
A letter from the South African branch/subsidiary or affiliated company must be provided confirming the transfer of such foreign national from the parent/affiliated company abroad. This letter must also specify the occupation and capacity in which the foreign national will be employed and further confirm that the maximum duration of the transfer shall not exceed two years.

Section 19(6) provides that the holder of an intra company transfer work permit may only work for the designated employer who has transferred him to South Africa and may not change the purpose of his/her visit.

Advertisement requirements in respect of work permits

Regulation 28 (which deals with work permits) and in specific Regulation 28(6) of the Regulations provides that the advertisement must comply with certain technical requirements and proof of advertisement by way of an original clipping from the national print media publication must comply with the following:

The advertisement must reflect the full particulars of the relevant newspaper/specialised magazine, as well as the date on which the advertisement was published;
Such advertisement must stipulate the minimum qualifications and experience required to fill the position as well as the remuneration and benefits offered;
The position offered and the responsibilities to be performed must be clearly defined;
The advertisement should measure at least 150mm by 19mm;
The closing date for the application must be stated in the advertisement;
The advertisement may not be older than three months at the time of the application.

Occupations in respect of which advertisement is not required

The following categories of employment do not require advertisements:

Religious workers
Key personnel at management level
Teachers at international schools
Aerospace Satellite Industry professionals
Chefs who are qualified by a specialised institute or with at least four years experience in preparation of traditional food
Models
Maritime industry professionals and qualified or skilled personnel
Sports professionals
Seasonal photographers and cameramen
Medical doctors and qualified practitioners
Seasonal hair stylists and make-up artists
Lighting or sound personnel in respect of special effects
Foreign spouses of citizens and residents, in respect of any category of employment

Should you require any further information regarding any aspects of the above then feel free to contact the author at immigration-sa@iafrica.com or visit our website at www.immigration-sa.co.za in order to view previous articles which appeared in HR Future.

Julian Pokroy is an admitted Attorney, Chairman of the Immigration Law Committee of the Law Society of the Northern Provinces, Convenor of the Migration Policy Working Group of SACOB, member of the BSA Task Group on Migration and the Ministerial appointee to head the Association of Immigration Practitioners of South Africa.