THE PENDING INTRODUCTION OF THE 2011 IMMIGRATION AMENDMENT ACT
At the start of the second half of the year, 2013, the immigration-service industry is abuzz with rumours of the pending introduction of the 2011 Immigration Amendment Act and its implications for those working in this field. Department sources continue to hint at the Act starting in August or September 2013 – but this date could still be a moving target. What are the implications of new Act? Well the answer is in various parts. With reference to the residence permit system, there will be significant changes. For the most part, unfortunately we will not know the full extent of the changes until the Minister of Home Affairs publishes the revised Regulations which will inform how the revised permit system will work. Certain changes are however already known.
NO CHANGING OF VISITOR PERMITS INSIDE THE COUNTRY: A key change here will be that where a person enters South Africa on a visitor permit, he or she will not be allowed to seek an amendment of that visitor permit to a work permit (or medical treatment permit) – from inside the country, unless there are exceptional circumstances. The rationale for this appears to be that people should apply for the correct permit before they leave home otherwise they are essentially making a serious misrepresentation when they enter the country claiming on arrival, to be coming for a “visit” or “business” when they are in fact coming to “work”. The Department has also expressly sought to target persons entering for a “visit” only to seek to amend their permit to accompany their apparently new-found spouses.
THE EXCEPTIONAL SKILLS WORK PERMIT IS TO BE REPEALED. The new Act will also repeal the current exceptional skills work permit. How that will work in practice and what it means for the holders of current exceptional skills work permits, will be revealed (hopefully) when the Regulations are published.
A NOT-SO-WELCOME MAT FOR REFUGEES: Asylum seekers and refugees will also feel the wrath of an increasingly refugee-hostile regime. Currently upon arrival, asylum seekers are given a permit for 14 days to report to a refugee reception office, to apply for asylum. This period will now be reduced to five days failing which these persons can be arrested and dealt with as illegal foreigners and, in theory, be liable to deportation. THE END OF SUPPORT BY IMMIGRATION AGENTS / ATTORNEYS TO THE PUBLIC?: The Amendment Act repeals section 46 of the current Act. This section provides that immigration practitioners, admitted advocates and attorneys may carry on the trade of conducting the work contemplated in the Immigration Act. What does the repeal of the section mean? The Department’s position is that the agents, attorneys and advocates may continue to help the public but this is entirely without any sort of official sanction from the Department and will not be done at the offices of the Department. And the public must present their own applications – and collect the outcomes – themselves. In addition, the Department has indicated that it will appoint a private sector permit processing service which will also, supposedly, offer legal advice on the permit process, to the public (for a fee). Once again, much will depend on the new Regulations to see how this is proposed to work in practice. That said, three points would appear to emerge from all of this. First: members of the public will still be at liberty to be properly advised by their legal representatives as to the requirements of South Africa’s immigration legislation. Second: the Act does not (and could not) prohibit people from seeking legal advice; and in theory, if persons believe they need legal advice when they engage the Department, it is hard to see how the Act could have intended that people be denied legal representation of their choice. But this does mean that immigration practitioners may find themselves in a more difficult position. And third: it seems likely that the introduction of the new Act will see various aspects of the Act being challenged in the Courts. So, as it is said in some countries, “the fat lady has not yet sung”. Watch this space!