REPORT: DEPARTMENT OF HOME AFFAIRS IMMIGRATION FORUM

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1 REPORT: DEPARTMENT OF HOME AFFAIRS IMMIGRATION FORUM 1. Executive Summary Informed by the Amended Immigration Regulations the Department of Home Affairs had requested for Wits University to host an immigration forum with all universities to advise on the amended Immigration Regulations in June Introduction The amended Immigration Regulations came into effect on Monday, 26 May 2014 and the amendments to the act impact foreigners looking to visit, study, work, live and own a business in South Africa. With a high volume of a calls received from universities, the DHA had approached Wits University to host an Immigration Forum on their behalf. This forum was attended by both International and Human Resource Offices. Sixteen of the 23 South African Universities were represented at the forum. The forum was also attended by the International Education Association of South Africa (IEASA). 3. Findings a) Many of the institutions were facing the same challenges particularly with the backlog of pending applications. The DHA has set up two teams to work on the applications i.e. VFS applications and the manual applications. It was agreed that lists would be compiled of both the pending work and study applications. No time lines were given as there are over 20 thousand pending applications. It was agreed that there would be one or two representatives from each university who would be the contact with DHA. The lists are to be forwarded to Mr Ben Makhalemele and Ms Seipati Ditsoane at DHA b) Applicants who are required to travel and do not have a valid visa in the passport will they be deemed as undesirable? If the undesirable status was activated due to the pending application and situation beyond the control of the applicant it was recommended that the applicant the Acknowledgement of Receipt, passport and visa to overstayappeal@dha.gov.za undesirable hold to be lifted from the record. c) Refunds: Applicants, who had paid fines when exiting the Republic must write to Rachelle Reyneke, rachelle.reyneke@dha.gov.za requesting for the refund. Ben Makhalemele and Seipati Ditsoane to be copied on the communication. d) Appeals: applicants who had submitted an appeal on a rejected outcome must forward the documentation to Reginah Menoe, reginah.menoe@dha.gov.za. Ben Makhalemele and Seipati Ditsoane to be copied on the communication. e) The directives that were published before the new regulations have fallen away f) Bank Accounts: Applicants with pending outcomes are facing difficulty with the banks. Also Post-doctoral Fellows are being turned away as they are in the country on Visitor s Visas. It was recommended that the Universities build relationships with the banking institutions to assist the Postdoctoral Fellows.

2 g) Miscellaneous forms for Rectification, Transfer of Visa, Replacement, Endorsement to study part-time to be finalised for the VFS website. The miscellaneous submissions will be at no cost. h) Repatriation Deposit: a. The check list on the VFS website is currently requesting for proof of repatriation deposit. The DHA is doing away with this requirement. It was requested for DHA to review the check list and amend accordingly. b. Applicants can use a letter of undertaking from the University for the Repatriation Deposit. This is only for work and critical skills visas. i) Visitor s Visa is the only visa that cannot be changed within the Republic. a. The applicant has to return home and apply for the new visa. b. Only in exceptional circumstances will a Change of Conditions be considered i. Emergency Medical treatment ii. Accompany Spouse or child is on a visitor s visa and wants to change to a study or work visa provided the main visa holder is on a valid work visa. c. A waiver can be applied for if an application for change of conditions is to be submitted in the Republic. The waiver has to be submitted through VFS j) Permanent Residence PR can be applied for provided that the applicant has a permanent contract/appointment with the University. k) VFS Global the outsourced visa facilitation company s call centre is not informed of all the technical difficulties experienced by the applicant. The universities representatives have asked for a direct link to the Corporate Account Unit. a. It was agreed that the Corporate Account Unit and reference number for the on-line application will be looked into and all universities will be forwarded the account/reference number l) Critical Skills List a. The current list that was published has not identified the critical skills in the fields of Arts (Social Sciences, Languages, etc.). As this list is a work in progress, it was suggested that the critical skills be forwarded to the DHA. b. In the meantime, if the skill is not identified, applicants will have to apply for a general work visa. 4. Conclusion Overall the forum was a success and the attendees were able to put forward their concerns and challenges. Two challenges that were identified and that need to be addressed: a. Critical Skills list - it is recommended that the list be reviewed by all faculties and the areas that were not identified be forwarded to the DHA. b. Post-Doctoral Fellows it is recommended that through HESA, an appeal be submitted to the Department of Home Affairs to allow Post- Doctoral Fellows to apply for change of conditions from within the Republic. Majority of the SA universities attract international Post-

3 Doctoral Fellows as researchers and if the immigration rules are NOT flexible, the SA universities will be losing skills to other universities in the world. STUDY VISA 13. (1) A study visa may be issued, in the prescribed manner, to a foreigner intending to study in the Republic for a period not less than the period of study, by the Director-General: Provided that such foreigner complies with the prescribed requirements. (2) The holder of a study visa may conduct certain work as prescribed. Removed: Full time work during the academic vacation periods. As prescribed: 12 (3) The holder of a study visa at a higher education learning institution as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997) may conduct part-time work for a period not exceeding 20 hours per week. (4) A study visa issued in terms of the Act shall automatically lapse if the holder thereof fails to register or is de-registered with the learning institution at any time during the period for which his or her visa has been issued or, if any of the undertakings referred to in subregulation (1)(b) are not met. (an undertaking by the Registrar) prescribed requirements: a) an official letter confirming provisional acceptance or acceptance at that learning institution and the duration of the course; b) an undertaking by the Registrar of the learning institution to i. provide proof of registration as contemplated in the relevant legislation within 60 days of registration; or ii. in the event of failure to register by the closing date, provide the Director- General with a notification of failure to register within 7 days of the closing date of registration; iii. within 30 days, notify the Director-General that the applicant is no longer registered with such institution; and iv. within 30 days, notify the Director-General when the applicant has completed his or her studies or requires to extend such period of study; Regulation 12(b)(i) 60 Day Proof of Registration Provide proof of registration as contemplated in the relevant legislation within 60 days of registration Regulation 12(b)(ii) 7 Day Failure to Register Report In the event of failure to register by the closing date, provide the Director- General with a notification of failure to register within seven (7) days of the closing date of registration

4 Regulation 12(b)(iii) 30 Day De-registration Report Within 30 days of de-registration, notify the Director-General that the applicant is no longer registered with such institution Regulation 12(b)(iv) 30 Day Completion of Studies Report Within 30 days of completion of studies, notify the Director-General when the applicant has completed his or her studies or requires to extend such period of study LEARNING INSTITUTIONS 39. (1) No learning institution shall knowingly provide training or instruction to a) an illegal foreigner; b) a foreigner whose status does not authorise him or her to receive such training or instruction by such person; or c) a foreigner on terms or conditions or in a capacity different from those contemplated in such foreigner s status. (2) If an illegal foreigner is found on any premises where instruction or training is provided, it shall be presumed that such foreigner was receiving instruction or training from, or allowed to receive instruction or training by, the person who has control over such premises, unless prima facie evidence to the contrary is adduced. CRITICAL SKILLS VISA - Replaces both Quota W/P and Exceptional Skills permit An application for a critical skills work visa shall be accompanied by PROOF that the applicant falls within the critical skills category in the form of a) a confirmation, in writing, from the professional body, council or board recognised by SAQA in terms of section 13(1)(i) of the National Qualifications Framework Act, or any relevant Government Department confirming the skills or qualifications of the applicant and appropriate post qualification experience; b) if required by law, proof of application for a certificate of registration with the professional body, council or board recognised by SAQA in terms of section 13(1)(i) of the National Qualifications Framework Act; and c) proof of evaluation of the foreign qualification by SAQA and translated by a sworn translator into one of the official languages of the Republic. Critical Skills Visa Reporting - Proof of employment within 12 months after obtaining Critical Skills work visa in a form of an employment contract specifying the occupation and capacity in which the foreigner shall be employed.

5 - Where there is no employment contract, proof of financial means every 12 months for the remainder of the validity of the visa. GENERAL WORK VISA An application for a general work visa shall be accompanied by a) a certificate from the Department of Labour confirming that i. despite a diligent search, the prospective employer has been unable to find a Suitable citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant; ii. the applicant has qualifications or proven skills and experience in line with the job offer; iii. the salary and benefits of the applicant are not inferior to the average salary and benefits of citizens or permanent residents occupying similar positions in the Republic; and iv. the contract of employment stipulating the conditions of employment and signed by both the employer and the applicant is in line with the labour standards in the Republic and is made conditional upon the general work visa being approved; VISITOR S VISA 11. (1) A visitor s visa may be issued for any purpose other than those provided for in sections 13 to 24, and subject to subsection (2), by the Director-General upon application for any period which may not exceed three years to a foreigner who is engaged in the Republic in i. an academic sabbatical; ii. voluntary or charitable activities; iii. Research; or iv. any other prescribed activity. The new Regulations now prescribe the relevant activities. New Conditions No person holding a visitor's or medical treatment visa may apply for a change of status to his or her visa while in the Republic, unless under exceptional circumstances set out below: is in need of emergency lifesaving medical treatment for longer than three months; is an accompanying spouse or child of a holder of the business or work visa, who wishes to apply for a study or work visa; EXCHANGE VISA 22. An exchange visa may be issued by the Director-General to a foreigner a) participating in a programme of cultural, economic or social exchange, organised or administered by an organ of state or a learning institution, in conjunction with a learning institution or an organ of a foreign state, provided that

6 i. such organ of state or learning institution reports to the Director-General on the stages and the completion of the relevant programme together with other Prescribed information; and ii. it may be prescribed that, in respect of certain programmes, upon expiration of such visa such foreigner may not qualify for a status until he or she has complied with the requirement of a prescribed period of physical presence in his or her foreign country or of domicile outside the Republic;