Briefing the Portfolio Committee on Labour Presentation on

Briefing the Portfolio Committee on Labour Presentation on the Legislated Interdepartmental Co-ordination Between DTI, Do. L and DHA on Certain Categories of Work Visas 11 May 2016 1

Mandate of the Department of Home Affairs in terms of the Immigration Act § The Department of Home Affairs is mandated through the Immigration Act, Act. No. 13 of 2002 to administer and regulate the admission of foreigners to, their residence in, and their departure from the Republic and for matters connected therewith. § The Immigration Act provides for the following categories of temporary residence visas: Study, Treaty, Business, Crew, Medical treatment, Relatives, Work, Retired person, Exchange, Asylum § The issuing of a permanent residence permit entails that a foreigner is entitled to reside in the RSA on a permanent basis, with all the rights, responsibilities and obligations of a South African citizen, with the exclusion of certain rights such as the right to automatically vote in elections and the right to use a South African passport 2

LEGISLATIVE FRAMEWORK • CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA NO. 108 OF 1996 • Immigration Act, No. 13 of 2002 (incorporating the 2007 and 2010 amendments) • Immigration Regulations • Promotion of Administrative Justice Act, No. 3 of 2000 3

PREAMBLE OF THE IMMIGRATION ACT, NO. 13 OF 2002 In providing for the regulation of admission of foreigners to, their residence in, and their departure from the Republic and for matters connected therewith, the Immigration Act aims at setting in place a new system of immigration control which ensures that— interdepartmental coordination and public consultations enrich the management of immigration; economic growth is promoted through the employment of needed foreign labour, foreign investment is facilitated, the entry of exceptionally skilled or qualified people is enabled, skilled human resources are increased, academic exchanges within the Southern African Development Community is facilitated and tourism is promoted; the contribution of foreigners in the South African labour market does not adversely impact on existing labour standards and the rights and expectations of South African workers; 4

IMMIGRATION ACT, NO. 13 OF 2002 BEFORE THE AMENDMENTS Section 21 - Corporate Permit 21. (2) After consultation with the Departments of Labour and Trade and Industry, the Director-General shall determine the maximum number of foreigners to be employed in terms of a corporate permit by a corporate applicant……. (4) The Minister may, after consultation with the Minister of Trade and Industry or Minerals and Energy or Agriculture, as the case may be, and the Minister of Labour, designate certain industries, or segments thereof, in respect of which the Government may— (a) reduce or waive the requirements of subsection (2) (c); corroborated representations made by the corporate applicant in respect of the need to employ foreigners, their job descriptions, the number of citizens or permanent residents employed and their positions, and other prescribed matters. 5

IMMIGRATION ACT, NO. 13 OF 2002 BEFORE THE AMENDMENTS Section 19 (2) General Work Permit An application for a general work permit shall be accompanied by- a certificate from the Department of Labour OR an extract from the database of a salary benchmarking organisation stipulating the average salary earned by employees occupying similar positions in the Republic. 6

DEPARTMENT OF LABOUR RESPONSIBILITIES IN THE AMENDMENT ACT 0 F 2011 Work Visa Category: • Corporate Visa • General Work Visa • Business Visa Corporate Visa An application for a corporate visa shall be made on Form 13 illustrated in Annexure A and accompanied by— (a) proof of the need to employ the requested number of foreigners; (b) a certificate by the Department of Labour confirming― (i) that despite diligent search, the corporate applicant was unable to find suitable citizens or permanent residents to occupy the position available in the corporate entity; (ii) the job description and proposed remuneration in respect of each foreigner; (iii) that the salary and benefits of any foreigner employed by the corporate applicant shall not be inferior to the average salary and benefits of citizens or permanent residents occupying similar positions in the Republic; 7

Amendments to the Immigration Act, No. 13 of 2002: The Director-General shall determine, in consultation with the prescribed departments, the maximum number of foreigners to be employed in terms of a corporate visa by a corporate applicant. Immigration Regulations of the Immigration Act, No. 13 of 2002: The departments contemplated in section 21(2) of the Act are— (a) the Department of Trade and Industry; and (b) the Department of Labour. 8

DEPARTMENT OF LABOUR RESPONSIBILITIES IN THE AMENDMENT ACT 0 F 2011 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; ; 9

DEPARTMENT OF LABOUR RESPONSIBILITIES IN THE AMENDMENT ACT 0 F 2011 Business Visa (Existing business) An application for a business visa by a foreigner who has established a business or invested in an existing business in the Republic, shall be accompanied by: • proof that at least 60% of the total staff complement employed in the operations of the business are South African citizens or permanent residents employed permanently in various positions Business Visa (Not yet established) An application for a business visa by a foreigner who intends to establish a business or invest in a business that is not yet established in the Republic, shall be accompanied by— • an undertaking by the applicant that at least 60% of the total staff complement to be employed in the operations of the business shall be South African citizens or permanent residents employed permanently in various positions: Provided that proof of compliance with this undertaking shall be submitted within 12 months of issuance of the visa; 10

DEPARTMENT OF TRADE AND INDUSTRY RESPONSIBILITIES IN THE AMENDMENT ACT 0 F 2011 Work Visa Category: • Corporate Visa • Business Visa Corporate visa An application for a corporate visa shall be made on Form 13 illustrated in Annexure A and accompanied by— proof of registration of the corporation with— (i) South African Revenue Service; (ii) Unemployment Insurance Fund; (iii) Compensation Fund for Occupational Injuries and Diseases; (iv) Companies and Intellectual Properties Commission(CIPC), where legally required; • proof that at least 60% of the total staff complement that are employed in the operations of the business are citizens or permanent residents employed permanently. • at any time during the duration of the visa…must provide proof that at least 60% of the total staff compliment that are employed in the operations of the business are citizens or permanent residents employed permanently. 11

DEPARTMENT OF TRADE AND INDUSTRY RESPONSIBILITIES IN THE AMENDMENT ACT 0 F 2011 Business visa An application for a business visa by a foreigner who intends to establish a business or invest in a business that is not yet established in the Republic, shall be accompanied by— a letter of recommendation from the Department of Trade and Industry regarding— (i) the feasibility of the business; and (ii) the contribution to the national interest of the Republic. proof of registration with the— (i) South African Revenue Service; (ii) Unemployment Insurance Fund; (iii) Compensation Fund for Occupational Injuries and Diseases; (iv) Companies and Intellectual Properties Commission (CIPC), where legally required; A foreigner who invests or has invested in an existing business shall, in addition to complying with subregulation (2), submit― (a) financial statements in respect of the preceding financial year; and (b) proof of investment 12

PRESENT APPLICATION MANAGEMENT SYSTEM § The Visa Facilitation Services (VFS) offices of the Department of Home Affairs and the South African missions are responsible for the acceptance, processing and issuance of temporary residence visas (TRV). § Where the Department of Home Affairs is not represented in the country abroad, application must be submitted at the designated South African diplomatic or consular representative. § Applications for permanent residence permits must be lodged in the RSA at a VFS office of the Department of Home Affairs or at a South African mission abroad. § When an application is lodged in the RSA, such application should ideally be submitted at the VFS office nearest to where the person intends to work, or for any purpose other than work, at the VFS office nearest to where the person intends to reside. § In all such cases the applicant must produce proof of being legally resident in the RSA on a temporary residence visa. § Applications must be submitted by the applicant in person and not through an attorney, advocate or immigration practitioner holding a power of attorney. 13

PRESENT RECOMMENDATION PROCESS (Simplified) DTI DOL (30 days) DHA (8 weeks) 14

A typical application for a Corporate Visa Feedback received from stakeholders both internally and externally is that this entire process is too onerous Pressure points: • Capacity to handle the volume of applications • Ambiguous SOP’s • Inadequately trained officials • Turnaround times 15

NEW PROCESSES REQUIRE NEW APPROACH 16

Polokwane New Application Management System Nelspruit Bloemfontein Kimberley Rustenburg 1 in Cape Town & 1 in George 11 Visa Application Centres (VACs) Durban 4 VAC’s (3 in Pta & 1 in Jhb) Port Elizabeth 17

NEW RECOMMENDATION PROCESS Electronic submission of applications required that the three Departments develop a secure, integrated and simplified process that will enable a faster and effective collaboration between the DTI, Do. L and DHA • • • DTI and Do. L recommendations are made to the DG of Home Affairs Limit the frequency of interaction by the applicant with the Departments Develop and put system in place to manage the processing of recommendations Development of new SOP’s aligned to the processes within DTI, Do. L and DHA Identify, prevent and eliminate potential risks such as corruption and fraudulent documents Consider using face value certificates with serial numbers that can be audited 18

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