|Admitted as an attorney in 1985 Chris Watters practices exclusively in the field of immigration law. Chris is the Vice-Chairperson of the Immigration Law Committees of the Law Society of the Northern Provinces and the Law Society of South Africa. He is a member of the SA Law Reform Commission's project team on immigration law and is a former member of the Immigration Advisory Board. He is a member of the US-based Association of Business Immigration Lawyers [www.abil.com]. Chris Watters Attorneys [email@example.com] assists in all aspects of temporary and permanent residence permit applications, immigration enforcement ‘disputes' and refugee law matters.|
As part of its regular display of how much “it cares” for local business confidence, job creation and South Africa’s offshore image as being ‘open for business’, Home Affairs has once again identified and then sought to close a loophole with all the finesse of Julius Malema addressing the party faithful.
If a foreigner wants to come to SA to work and for a period in excess of three months, he or she must apply for an appropriate category of work permit.
But if the person is only flitting into the country for a few days (or any period up to three months), attending to meetings, work on a film or other such work, they can apply for what is called a section 11(2) visitor permit. This is permission to be here as a visitor and to work – for that very limited window.
Until very recently all that was required (if your passport is visa-exempt) was a letter confirming when you were coming and to do what where and for how long. You would present this on arrival at OR Tambo and you would get permission to work for up to three months. This was nice, clean and efficient.
Sadly, this business-friendly device was also open to serious abuse – as happened. Home Affairs officials will tell you of cases of white collar executives who have been working in the country for years – but without ever applying for a work permit. These persons would simply ‘commute’ every three months and return with a new authorisation to work. This utter disregard for South Africa’s immigration laws did not go down well, understandably.
But rather than ‘tweak’ their software, deploy their officials to inspect known suspect employers or even just engage business and other stakeholders for an efficient response, the Department has instead implemented a ‘butter-cutting chainsaw’ response which threatens to hit a whole range of industries that need, legitimately, to deploy employees at short notice and for short periods, to the Republic.
In terms of a directive and further ‘guidelines (all of which, in a fit of transparency, remain secret and have not been disclosed to the public – have a look at the Department’s website), persons wanting these short term authorisations must submit a serious volume of representations to the Director General himself and do this not less than 10 days before you arrive.
And unless the Director General has approved this request in writing before you leave (hmm, getting a response from the Director General of Home Affairs in under 10 days?...) and you, as the applicant, present it to officials at the port of entry, you will not get the 11(2).
And do not try to haggle your way to an 11(2) endorsement. These officials at the ports of entry have been given no discretion.
So there can be no more last minute instructions to dash to Heathrow to get to Johannesburg tomorrow – its not going to happen. And in addition, these 11(2) permits cannot be extended past 90 days. If you need more time, apply for a work permit.
Sorry Home Affairs, but this is just clumsy, ill-considered and shortsighted. It has all the hallmarks of being designed by ‘the gatekeepers’ with little or no regard to what happens in the real world of commerce and industry.
It will just force genuine ‘workers’ to arrive on ordinary section 11(1) visitor permits and do their work stint illegally. And if detecting 11(2) abuses was difficult, how much more difficult is it going to be to detect 11(1) abuses.
The abuses of the 11(2) permit needed to be set right. But this was not the way, Home Affairs.