REFUSAL OF GENERAL WORK VISAS – TIME TO CHALLENGE HOME AFFAIRS?

South Africa’s immigration laws largely mirror the political order of the day. In 1994, South Africa took its rightful place on the global stage for a host of positive reasons.

Our immigration laws were destined for change as policy considerations shaped the recognition that foreign investment and the importation of needed foreign skills were a priority if our economy was going to prosper.

The Immigration Act 13 of 2002, as amended, (“the Act”) was enacted and made it expressly clear that in its Preamble that:

• “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 SADC is facilitated; and
• tourism is promoted.

Explicit in this stated intention is an unequivocal desire to attract needed foreign skills and an acceptance of the direct relationship of foreign skills and our economic growth.

For almost ten years up to 2014, our Department of Home Affairs (“DHA”) sought to implement our immigration laws, and whilst not perfectly applied, there was at least a measure of appreciation for foreign skills and its benefits.

Between 2014 and 2020

Regrettably, in May 2014, it all changed for the worse when our Act was dramatically amended. Ironically, nothing changed in the DHA’s promise as contained in the Preamble.

Ominously, the amendments to the Act, in so far as the General Work Visa, and most notably, the introduction of the Department of Labour (“DoL”) and its role in the requirements and adjudication, led to a breach of its promise and an antipathy towards foreign skills, investment, tourism and entry of exceptionally skilled people. Arguably even Xenophobic sentiments.

Fast forward 2020 and five years of our new immigration laws took root, our economy is being downgraded faster than you can blink; foreigners, both abroad, and in South Africa, are being treated with contempt in the visa process, our unemployment rate is the highest it has ever been, and consequently, places our country at the top of the wrong pile for all the wrong reasons.

How did this all happen?

There was no political will to live up to its promise in its own Preamble and stated policy direction taken by the DHA.

So what happened to the General Work Visa?

Our Act offers three types of working visas; a General Work Visa, a Critical Skills Work Visa and finally an Intra-Company Transfer Working Visa.

Statistics on the part of the DHA remain shrouded in mystery and would reveal a dark truth since it is estimated that the issuance of General Work Visas have been reduced by more than 90% before 2014.

Sadly, it is not because the calibre of applicant is not up to standard – no! It is the fact that the DHA will scupper the endeavor before the application even hits the DHA officialdom to adjudicate, no matter what the skills-set is being presented. Enter, the DoL.

The ‘impossibility’ of acquiring a General Work Visa, and its knock-on effect is that rogue and unqualified immigration agents make a living by literally ‘selling’ General Work Visas in some back-room to those desperate foreigners to stay in work and over commits DHA resources, which are already severely compromised.

What should happen in a General Work Visa application?

The basis of a General Work Visa is that a skilled worker has been offered employment by a South African employer and has been established to be the best candidate for the position advertised.

Section 19(2) of our Act, as amended, leaves the substance of the General Work Visa to the 2014 Regulations and sets out the requirements in clear and express format; namely, the local employer must embark on an objective and transparent advertising and recruitment campaign to demonstrate that the selected employee has demonstrated the requisite skills or qualifications beyond that of any local applicants.

Our Department of Labour (“DoL”)

Now, technically, the advertising and recruitment requirement is much the same as before 2014, but with one very significant difference – the DoL.

So, what’s up with the DoL?

So, the DoL have been tasked, as government agents of DHA, to oversee this process and satisfy themselves that proper and transparent recruitment and selection processes have been undertaken so as not to flout any the Act. That is the scope and obligation of their involvement in terms of the Act and regulation 18(3)(a) of the 2014 Regulations. Nothing more! DoL are not mandated to pursue any other conduct.

Sadly, the DoL, and it can only be assumed, with the connivance of the DHA, take a pre-meditated, calculated and rogue approach to attend on the prospective employer’s premises and conduct an audit of its employment law obligations under the Basic Conditions of Employment Act, the Unemployment Insurances Fund Act, Workmans Compensation Act and other labour law matters.

The legal ambit of DoL in terms of the Act and regulation 18(3)(a) goes ‘out the window’ and remains a non-event without an informed recommendation of the prospective foreign employee as is their obligation.

As an aside, and without any concern for the actual task at hand, the DoL would either ignore the principal purpose of its attendances on the employer and not even raise the employment and recruitment processes of the prospective employee or at best raise the matter as matter of fleeting consideration.

Regardless of the whether any questions or consideration were being directed at the employer about the foreign employee, the DoL would negatively recommend the employment of the foreign employee no matter what. That would be the end of any positive outcome of any General Work Visa application!

How to resolve?

This unlawful practice and implementation of the laws by both the DHA and the DoL relating to a General Work Visa cannot continue without consequence.

If you as the foreign candidate have the requisite skills, and or, qualifications, and have clearly demonstrated the ability as the best candidate for the position, and you receive a negative recommendation i.e. refusal of general work visa, then do not accept this and contact our law offices as we will fight your corner and ensure that justice prevails.

To conclude, to suggest that foreign employment in South African hampers local employment opportunities is a farce and spin. Such argument falls totally flat when matched against our spiraling empirical evidence relating to our economy and unemployment. Facts don’t lie.

The fact remains our Preamble of the Act requires recognition of the contribution of foreign skills and so does our economy as a developing country. South Africa cannot do it alone. Yet, instead the government pursues a narrow, ill-conceived and orchestrated one-dimensional policy of ignoring what it set out to do in the early 2000’s when it but the Bill before parliament.

The records and statistics do not lie. But someone is though!

IMMIGRATION DIVISION – SMIEDT & ASSOCIATES