The regulations require foreigners setting up businesses in South Africa to ensure that 60% of their workforce comprises South Africans. Previously, foreigners would be granted business visas if they brought at least R2.5m into the country.
Incoming Minister of Home Affairs Malusi Gigaba last week unveiled the new regulations for visa applications, permanent or temporary residence and foreigners looking to set up businesses in South Africa.
Gigaba says the new rules will bolster “security elements” in South Africa. He says the regulations are consistent with international standards and benchmarked with the South African constitution. But immigration lawyers are gearing up for possible litigation to have the rules reviewed and amended.
The new immigration law prohibits foreigners from using agents or lawyers for visa applications, calling for all applicants to apply in person. People who enter South Africa as visitors are barred from renewing or changing their visa status while in the country. Foreigners must renew visas from the country they reside in.
They also have a wide reaching impact on personal relationships. Visa applicants will have to prove that they have been in a relationship with their foreign spouses or life partners for at least two years to qualify for a visa.
Life partners are subject to interviews on the same day to confirm the authenticity of their relationship.
Overstaying a visa period will no longer result in a fine, but will result in the person being declared “undesirable”.
Premise for court action
The Forum of Immigration Practitioners of South Africa (FIPSA) has taken particular umbrage to a clause dealing with spousal visas, saying the government cannot impose on personal matters.
“The Constitutional Court says you cannot deprive someone the right to live (as they want). We don’t want an environment of anarchy; we want a constitution in line with the international law,” FIPSA chairman Gershon Mosiane argues.
Chairman of the Immigration Law Specialist Committee of the Law Society of South Africa Julian Pokroy agrees: “Family life (is sacrosanct) and anything that prevents people from being together is unconstitutional”.
Pokroy says they are “carefully considering” all options before reverting to litigation.
FIPSA is currently taking legal advice on whether to consider legal action against the department.
FIPSA says the department did not allocate sufficient time for public comment in February when the draft regulations were gazetted. Craig Smith & Associates, a Cape Town-based immigration law firm confirmed it is looking at legal options.
Department of Home Affairs spokesperson Ronnie Mamoepa says the department has not received any notification of litigation. “It is a constitutional right to take the matter to court, but we are convinced that the new immigration laws have passed the constitution,” he says.
Mosiane says under the new regulations, foreign investors might be forced to commit R5m to qualify for a visa. Also the revised immigration rules do not take into account South Africa’s labour context and skills shortages, which might discourage foreign investors.