Although the Draft Immigration Amendment Bill does not amount to an extensive overhaul of the Immigration Act, the proposed changes to the Act are likely to have far-reaching consequences on immigration to South Africa. The proposed changes come in the wake of the Department of Home Affairs' centralisation of its adjudication process for temporary residence visas and permits to its Pretoria Head Office earlier this year which has resulted in the Department struggling with a tremendous backlog of applications. The centralisation of adjudication was aimed at eradicating corruption within the Department and to prevalence of fraudulent permits. Unfortunately, poor planning, inadequate manpower and ineffective processes surrounding the centralisation process have resulted in large scale delay, with applications taking several months to be processed.
Some of the significant changes proposed include the following:
- Applicants for visas and temporary residence permits will have to visit offices of the Department of Home Affairs or a foreign embassy to apply in person for their status. Attorneys, Advocates and Immigrations Practitioners may no longer lodge applications on the applicants' behalf as provided for in the current Act. This is likely to cause severe problems, as it is impractical to expect executive level employees of multinational companies to queue at the Department's offices for hours on end to submit applications, particularly since this cannot be done by appointment. Bearing in mind that each agent often submits numerous applications per day, it is also likely to exacerbate the poor conditions and overcrowding experienced at Home Affairs offices nationally.
- In terms of the proposed changes to the Act, applications for a change in status or changes to the conditions of a permit can no longer be brought in South Africa without the approval of the Minister of Home Affairs, and approval will only be granted in exceptional circumstances as prescribed by the Minister. For example, it would not be possible for an intra-company transfer permit to be converted into a general work permit without the Minister's approval. On a practical level, it is unlikely that the Minister will be able to deal with the large volume of applications that is likely to be received.
- Minors will now have to have their own valid passport to enter or depart from South Africa, whereas they could previously enter on the basis of their parent's passports provided that their details were endorsed on their parent's passport. A major concern is that business permits will only be issued in respect of businesses prescribed to be in the national interest. The proposed amendments include the deletion of the Director-General of Home Affairs and Department of Trade and Industry's ability to reduce or waive prescribed capital requirements. No special provision is made for low capital, labour intensive businesses.
- Quota Work Permit and Exceptional Skills work permit categories are combined under the critical skills work permit category, which proposes to effectively do away with the Exceptional skills category.
- It is proposed that Corporate permits only be issued to companies which conduct business in limited sectors, as published in the Government Gazette.
- It is also proposed that anyone who has overstayed their visa a prescribed number of times will become an undesirable person and therefore ineligible for a permit, visa, admission to the Republic or Permanent Residence. This is particularly challenging if one considers the number of overstays currently being caused by the Department's own inability to renew visas timeously.
- The bill proposes drastic amendments increasing the maximum sentences for contraventions of various sections of the Act.