DEMOCRATIC ALLIANCE Submission
Prepared for…..
The Minister of Home Affairs Hon Malusi Gigaba _____________________________________________________________________ IMMIGRATION REGULATIONS In terms of section 12 of the Immigration Amendment Act 2007
Signed into law on the 22 May 2014, the new Immigration Regulations introduce, (inter alia) a new visa regime for local and foreign travellers. Although many of the provisions of the new regulations have good intentions, there remains many unintended consequences, which would have a long-‐term effect on job creation, tourism & economic development. This submission is compiled with a view to highlighting those unintended consequences for the consideration of the Minister. The Impact on Jobs Immigration Practitioners The introduction of Visa facilitation Centres, although aimed at streamlining the Visa Facilitation Process, will have a negative effect on the hundreds of private immigration practitioners and law firms in the country. Each of these practitioners employ on average between 4-‐10 staff. There are approximately 450 private immigration practitioners in the country and hundreds of additional law practitioners who provide a similar service. The Director General announced (on the 14 July 2014) that ”the launch of the new visa facilitation centres will contribute towards job creation and that already 92 jobs have been created”. 1 1 sanews.gov.za
He obviously did not take into account, the number of staff that stands to lose their jobs as hundreds of private immigration practitioners become redundant. The Department, through the registration of immigration practitioners, acknowledged the role that they play in the visa/immigration industry. Registration numbers were issued to scores of Immigration Practitioners, indicating an acceptance of the role that they play in the Visa Processing regime, however the new regulations make no provision for their continued survival. Immigration Practitioners contribute significantly to the economy of the country as they market their services abroad and thereby increase the number of foreign visitors to our country. Many private immigration practitioners offer a one-‐stop advice centre for foreign investors looking to do business in South Africa. Proposed Solution: v The Department can find a continued role for the hundreds of Private Immigration Practitioners. One possible approach is to allow for a partnership to be created between VFS Global and Private Immigration Practitioners or expand the visa facilitation industry to allow for more than one service provider. A similar model has been explored and implemented in Australia with some success. Monopolising the industry in South Africa, will have the opposite effect. v Allow private immigration practitioners to continue assisting applicants for corporate/business visas and other visas that do not require biometrics validation in the application process. In pursuit of remaining profitable, private practitioners will source potential investors in many countries abroad and will facilitate the growth in foreign direct investment and job creation. v Conduct a regulatory assessment on the impact of the new regulations on jobs and the economy in SA.
Student Visas Foreign students studying in South Africa are now obligated (in terms of the new regulations) to return to their country once they have completed their studies. In a country where the list of critical skills is growing, the department should make it more attractive to retain these qualified students instead of banishing them back to their country, especially in instances where students are studying in a field that is considered as a critical skill.(as gazetted recently) In addition, South African students who study in the medical field in SA are required to conduct a compulsory period of community service. In contrast, foreign students are allowed to immediately return to their home country without making any contribution to the country’s development. Proposed Solution v Amend the regulations to allow foreign students (scarce skills study) to remain in the country after completion of their studies. v Explore the possibility of community service for foreign students studying in the medical field.
The Impact on Tourism Visitors Visa In a world where tourism competition is growing stronger, the more accessible a country is, the greater the success in achieving international market share. Over the last ten years, South Africa’s tourism industry has grown significantly. The potential to grow this industry in future years is even greater. The tourism sector currently employs about 600 000 people. The National Development Plan suggests that the sector has the potential to add a further 225 000 jobs by 2020 and that this sector can contribute about R500bn to the economy. All over the world, countries are finding ways of making it easier, simpler, faster and cheaper to become more attractive to tourists and to claim a higher share in the multi-‐billion dollar international tourism market. Whilst countries elsewhere are introducing more streamlined application processes, it appears that the new regulations in South Africa are advocating quite the opposite. There are now more requirements for permits than there has ever been before. Making it obligatory for travellers to apply in person, (for fingerprint capturing) is also extremely inconvenient especially in countries where only one or two VFS offices are available and “would-‐be” travellers have to take internal flights over hundreds of kilometers (at further cost) to appear in person at a VFS Global office. The CEO of Cullinan Holdings for eg has confirmed in an interview that he has received feedback from Chinese travel agents that a 70% drop in travel from China
to South Africa is forecast due to the new immigration regulation’s hasty implementation.2 In addition, travel agents in India are already advising their clients to look at other African destinations because of the new immigration regulations. Proposed Solutions v Allow for the capturing of fingerprints on arrival at ports of entry instead of during the visa application process. v Engage the travel agent industry in order to find ways to reduce the regulatory burden and make SA more attractive. v Introduce an e-‐visa system where foreigners can apply and make payment online. Unabridged Birth Certificate Current regulations require that all travellers departing and arriving in South Africa with children, must produce an unabridged birth certificate.(implementation date extended) The lengthy and time-‐consuming manual verification process that is conducted by the department to process applications is a source of huge frustration to South African citizens travelling abroad. Although the department promises delivery in weeks, in many instances it takes several months to for a successful application. The International Air Transport Association (IATA) estimated that in and outbound travel in South Africa was worth R24 billion last year.3 A quarter of this came from
2 3
http://www.bdlive.co.za/ http://www.iol.co.za/business/news/new-‐visa-‐laws-‐upset-‐tourism
people travelling with children. This means that we place at risk, a potential R5bn in revenue because of the introduction of just this one new requirement. Proposed Solution v Extend the implementation date of this requirement (even further) until the Department can tidy up its verification process and complete the digitization of citizen records. This will result in quicker turn-‐around times for unabridged birth certificate applications. The Impact on the Economy Business Visas Unemployment in SA is high, growth rates are down, economic development is slower than predicted and labour protests are on the rise. All of these factors make South Africa an unattractive business destination. To turn this around South Africa needs to become the most attractive destination in the world to do business. Home Affairs can play its part in turning the situation around by opening our doors to the entrepreneurs of world. A simpler hassle-‐free business visa regimen can contribute to this aim. The current regime is far too restrictive and unattractive. There are too many requirements and the process is far too restrictive. Notwithstanding the diagnostic mentioned in the above paragraph, the current requirements for a business visa make South Africa an even more unappealing place to do business. A five-‐year period to guarantee the returns of a minimum R5m investment is too short and therefore risky in the eyes of an investor.
The current regulations require no less than 11 conditions for first time foreign investors and 13 conditions for persons who have already invested in a business in SA. By comparison Brazil simply requires a Passport, drivers license a letter explaining the nature of the business and the application form.4 Considered as the fastest growing economy in Africa, Mauritius offers 100% foreign ownership with NO minimum capital required. Individuals wanting to start a self-‐ employed business in Mauritius need only to register the business activity with the relevant department.5 The National Development Plan identifies small business development as the focal point towards reducing poverty, unemployment and inequality. South Africa’s Visa regimen should support this plan by putting in place, attractive measures to influence foreign direct investment in small business development. Proposed Solutions v Instead of a letter of recommendation from DTI, a document proving the feasibility of the business and having to prove that the proposed business venture will contribute towards the national interest, the DTI should be issuing invitations for investment and not bureaucratic red-‐tape. v Introduce a small business visa and reduce the amount of capital investment by half. v Increase the period of a business visa to ten years for R5m and 5years for 2.5m 4 5
http://visacentral.com/brazil-‐visa http://www.investmauritius.com/doing-‐business/entering-‐mauritius-‐for-‐business
Critical Skills Visa Current regulations require that critical-‐skilled applicants provide confirmation from professional bodies in South Africa that they are suitably qualified. However, none of these professional bodies are obligated in terms of existing legislation to issue such confirmation letters. This indicates that such applicants are at the mercy of the professional bodies. If these bodies do not have the means and capacity to issue such confirmations, then the underlying intention of the department is invalidated. Furthermore, a cursory check with some of the professional bodies confirms our concern that no necessary processes or procedures have been implemented to prepare for any influx of confirmation requests. There is also no appeal mechanism for applicants in the event requests for confirmation are denied. v Waive the requirement for confirmation from professional bodies, or v Extend the date of implementation of this requirement until such time that professional bodies are willing and able to issue compliance certificates within a short space of time. Corporate Visa The current requirements for a corporate visa only deals with “general work” visa applications. It does not take into account the potential of employing critical-‐skilled foreigners. Proposed Solution v In order to encourage the employment of critical-‐ skilled foreigners, the requirements for this visa should be extended to include provisions for the employment of critical-‐skilled person. In this instance, the current restrictive requirements in the case of critical-‐skilled persons should be waived viz
confirmation of a diligent search of a similarly qualified person, deportation costs, proof of the need to employ the required number of foreigners, job descriptions and remuneration offer. v A critical-‐skilled foreigner should also be allowed to work in more than one position if he/she possesses the qualifications for more than one critical skill. Intra Company Work Visa Current regulations stipulates that for the purposes of a “general work” visa, proof must be provided that the salary and benefits are not inferior to the average salary and benefits of citizens. This requirement is NOT extended to an Intra Company Work Visa. The impact of this contradiction is that foreign companies will be able to import skills from low cost countries, pay these individuals salaries that are inferior to South Africans and therefore alter the balance of the job market, a principle that the regulations intend to avoid. Where a South African company and a foreign company compete directly in the South African market the home grown South African company is forced to go through a process of obtaining a labour certificate to prove that a South African is not available for the job before applying for a work visa. On the contrary, the foreign owned company can apply for an intra company visa without needing to work through the same lengthy process. The impact of this is that the South Africa business would face higher input costs than the foreign-‐owned competitor and eventually be forced out of business. Proposed Solution v Introduce an equitable process for general work visas and intra company work visas.
The Impact on our Reputation Undesirable Persons This requirement is causing massive frustrations to both South African citizens and foreigners alike. Thousands of South African citizens have active personal relationships with foreigners living in the country. Many of them have married South African citizens and have children born in the country. All of these foreigners/permanent residents have been allowed into the country on permits granted by the department. These permits are all time-‐bound, will expire and the need to have them extended is predicable. The department is therefore burdened every month with thousands of applications for extensions. In many instances the department is unable to deliver extensions on time thereby resulting in many foreigners overstaying their visas whilst their extension applications are still pending. Whilst in the past, a penalty was imposed for over-‐staying a visa, a new more stringent punishment is being meted out to those who overstay their visas by marking their passports numbers as being undesirable and banning them from re-‐entering for a period of up to 5 years. This requirement is tearing families apart and is an attack on the emotional well being of thousands of people in this predicament. The introduction of an appeal mechanism is unfair, (because of the departments inability to grant extensions on time), is time consuming and also consumes many man-‐hours of valuable human capital. Proposed Solution v Extend the implementation of this requirement until such time that the department is able to attend to extension applications within a reasonable time frame, or
v Allow ports of entry to access a “visa extension applications register” in order to determine whether or not a traveller who has overstayed, is awaiting an extension application. This will prevent immigration officers from marking these innocent travellers, as “undesirables” and the number of appeals will be drastically reduced. Permanent homosexual or heterosexual relationship In order to qualify for this visa, an applicant has to prove that he/she has been in a relationship for a minimum of 5 years. This appears arbitrary and does not take into consideration other factors that can prove legitimacy of a relationship. For eg, a foreigner woman living in a relationship with a south african citizen for three years with two children, will not be allowed to work in the country for as long as she does not have the proper permit. The regulations also do not recognise polygamous relationships of foreigners yet south african citizens may have more than one life partner. v The regulations should make allowance for other factors that can prove legitimicy of a relationship. v The regulations should not discriminate against applicants in a polygamous relationship.
Public Education Campaign The recently implemented immigration regulations have introduced significant changes to the original visa regime. These regulations will affect the lives of thousands of foreigners already living in the country as well as the millions of South African citizens who will travel abroad with children in the years to come. Many citizens and foreigners are unaware of the drastic changes to the immigration regulations and will not make provision for the necessary adjustments to their travel arrangements and permit applications. For eg permanent residents are unaware that they must re-‐appear for an interview at a DHA office in the last six months of the second year that their permit was issued. In addition, citizens who travel with children, plan overseas travel arrangements by booking and paying online unbeknown to the new unabridged birth certificate requirement. This will have huge cost implications for citizens when UB certificates are applied for late or not applied for at all. Proposed Solution v The department should embark on a national education campaign on the new immigration regulations. v Travel agencies in South Africa and abroad should be briefed and the new regulations should be widely communicated/distributed. Haniff Hoosen,MP DA Shadow Minister Home Affairs