The visa regime under the Immigration Amendment Bill could potentially adversely affect the local business sector and the economy, says owner of law firm Julian Pokroy Immigration Law Attorneys Julian Pokroy.
He says, when it comes into operation, the Amendment Immigration Act will make it more difficult for South African businesses to employ skilled foreign nationals.
“Skilled foreigners, who already experience relative difficulty in obtaining South African work permits, will have to jump through a few new hoops,” he adds.
Under the new visa regime, Section 46 is removed. This had stipulated that only attorneys, advocates and immigration practitioners registered under the Immigration Act, No 13 of 2002, could conduct work flowing from the Act.
“This imposes the requirement that the applicant should apply for a worker’s permit at the Department of Home Affairs or the relevant embassy or High Commission, in person,” he notes.
With more than 30 years’ experience as an immigration specialist attorney, Pokroy says this means that the nonattorney practitioner industry will become completely unregulated. Attorneys and advocates are, however, statutorily regulated and are bound by strict codes of conduct and ethics and covered by indemnity insurance.
“It is reprehensible that the Department of Home Affairs is attempting, directly and indirectly, to inhibit its interaction with attorneys, advocates and non- attorney immigration practi- tioners, on the premise that it can render this service itself,” he adds.
The decision regarding what entails a critical skill and what is in the national interest is now placed in the hands of bureaucrats in terms of the Amendment Bill.
Pokroy insists that immigration law is highly specialised and should only be practised by certi- fied, qualified and properly regis- tered attorneys, advocates or immigration practitioners.
“This may restrict the flow of highly skilled foreigners into South Africa, depending on which way the bureaucratic red tape takes the concept of critical skills.”
Work permit categories will also be narrowed down, excising the Quota Work Permit (provided for in Section 19(1) in the principal Act) and the Exceptional Skills Work Permit (provided for in Section 19(5) in the principal Act), and generically placing them under a grouping that will be called the Critical Skills Permit.
Further, he says it is also worrying that little or no consult- ation regarding which skills are available in the country has taken place with organised business, which is one of the major stakeholders in the South African employment economy.
While Pokroy believes that employment of South Africans must remain a priority, he feels that it is in line with best inter-national immigration law practice and skilled management to import skills in sectors where skills are lacking.
“I find it difficult to understand why a more restrictive visa regime would be conducive to such importation of skills. The import- ation of skills must be seen as an interim measure, pending the training up and upskilling of South African citizens to create our own skills pool.”
He says 17 years into the new South African regime, the skills shortage has become increasingly serious and many trades, professions and occupations have not been developed as planned.
“A serious challenge in South Africa is the competition from other developing and First World countries for skills in the most critical sectors.”
South Africa is, by way of example, not producing a sufficient number of engineers and many of those that are locally trained are being attracted by more prosperous opportunities abroad.
Pokroy suggests that provision should be made in South Africa’s tertiary education system for these skills to pass through the mill and emerge into the South African labour market.
“Those in power must acknowledge the fact that not enough of the required skills are produced and that, as a bridging move, it is neces- sary to import highly skilled foreigners and investors. Changes to our immigration laws, thus, have to encourage skilled foreigners into South Africa as one of the key elements of ultimate job creation,” he adds.
On June 14, the Parliamentary Home Affairs Portfolio Com-mittee approved the amendments to the bill.
Other predominant alterations can be summarised as follows:
Changes from visitors’ permits to other types of permits will become more restricted. Normal visitors and medical visa permit holders will no longer be allowed to change their status while in South Africa and will have to return to their home countries to apply for an appropriate visa and await the outcome.
Further, investor-type Own Business Permits, will have to be founded on a business that is in the national interest, as determined by the director-general of Home Affairs.
Pokroy is concerned that the parameters on which investors and skilled individuals of foreign extraction come into South Africa will be narrowed and will be counterproductive to the development of the local economy.
It was decided that the word ‘permit’ should be replacement with the word ‘visa’.
“This will bring the terminology in line with international best immigration practice and will be less confusing to all parties,” Pokroy notes.
The amendments in terms of this word and others are currently being prepared for a second submission to the National Assembly before being sent for signature by the President.
Further, he says that visas are taking an inordinate length of time to finalise and many skilled foreigners simply cannot wait for the visa to be approved.
Under the current legislation, it can take between two months and a year to process a visa application in South Africa. This is partly owing to backlogs in processing temporary and permanent residence applications.
“A culture of serving the client should become a priority within the department,” Pokroy insists.