Archive for February, 2009

A recent change in the immigration regulations relating to asylum seekers and refugees will give South African employers easier access to the skills of foreigners who come here to escape persecution in their own countries.

In a judgment delivered in April 2008, in the matter of Dabone and Others versus the Minister of Home Affairs and Another, the Cape High Court ruled that foreigners registered as asylum seekers or refugees may apply for temporary residence permits – including work permits – while in South Africa. Previously they were required to return to their country of origin before applying, and could not do so without giving up their refugee status.

This meant that many highly skilled foreigners were unable to take up employment in South Africa simply because potential employers did not want to get caught up in the lengthy and inconvenient deregistration and re-registration process.

For the asylum seeker, being compelled to return home to apply for a temporary permit often meant going back into what might be dangerous territory: for example, a Zimbabwean who might be fairly prominent and might have been targeted because he supported an opposing political party might face further persecution on returning home.

Before returning, many would already have spent up to four months trying to reach the front of the queue at refugee centres in South Africa, to apply for their papers as asylum seekers. At the refugee centre in Rosettenville, Johannesburg, there are about 40 000 people a day in the queue – many literally living there in their desperation to reach the front – and the country does not have the capacity to handle this situation. Even in Cape Town, it can take several weeks before asylum seekers – including scientists, doctors, teachers and other professionals – are able to reach the head of the queue just to begin the process of applying for refuge. This is a total waste of the productive use of people’s time.

South Africa hasn’t responded appropriately because, until recently, cabinet did not recognise the problem, with severe implications both for people seeking refuge and South African companies trying to meet skills shortages. Once a country acknowledges the problem, the United Nations requires it to put resources in place to manage its refugees in terms of UN criteria, compensating the country for its expenditure on shelter, food and medical care. This situation is now being addressed in South Africa.

In terms of the Dabone judgment, it is critical for HR managers and other staff recruiters to know that Home Affairs cannot refuse to issue work permits to individuals who have been granted asylum seeker or refugee status in South Africa, and that these individuals no longer have to leave the country before applying for temporary permits. Under our immigration laws, all permits are categorised as temporary residence permits until the permit holder has completed five years of continuous work and elects to apply for permanent residence.

Once all documents for a temporary residence permit have been submitted, with refugee papers attached to the application form, Home Affairs will have up to 30 days – a calendar month – to issue the permit. Employers should not allow applicants to start work before the correct permits have been obtained, as penalties can be severe.

Global Migration can assist prospective employers and foreign workers by assessing and suggesting the best temporary residence permit option in individual cases, and acting for them in handling the entire application procedure and liaising with Home Affairs.

Leon Isaacson is the MD of Global Migration, a national immigration company, which advises corporates and individual clients about immigration options and opportunities in South Africa. Phone 021 4190934 or visit www.globalimsa.com.

HR professionals, recruiters and managers are hard pressed to find the necessary talent in the South African environment to grow their businesses and remain competitive.

As talent mobility increases, in-demand workers are more and more moving between companies both within national borders as well as across them. This brings with it its own challenges as employers are having to cope with increased risk and legal matters. There are a few key points that will help them minimize their risk when employing internationally mobile employees.

SEARCHING FOR SKILLS
South Africa is not unique in the world in experiencing this problem, but it is likely to be an issue for the next 15 – 25 years as education systems adapt to producing more appropriately prepared and skilled individuals for the general economy. Skilled foreigners are likely to play a significant role in our economy until balance is restored within the education and training systems in South Africa.

IMMIGRATION PRACTITIONERS
In South Africa, only a registered immigration practitioner, attorney or advocate who meets government criteria may legally represent a foreigner in applying for permits at Home Affairs, and they are bound by its code of conduct. But many fly-by-night operators provide permits illegally, at exorbitant prices, leaving unsuspecting people open to legal sanctions if caught with such documents. These operators often prey on foreign communities that do not understand our languages well.

Before engaging a practitioner, it is important to establish their credibility. Ask for references from current clients and check the practitioner’s registration certificate. Many people who call themselves immigration practitioners are agents or third parties who act as intermediaries, approaching registered practitioners on behalf of applicants and adding a substantial mark-up to the practitioners’ fees. To prevent “double handling,” as this is called, refuse to deal with any agent if you can’t speak directly to the immigration practitioner or the principal of the Immigration business.

In South Africa there are various types of work permits: quota, general, exceptional skills, intra-company, exchange and business permits. There is also a retired person’s work permit, and certain visitors’ permits allow foreigners to work here for a short while. Getting the right permit requires thinking and planning, and a professional immigration practitioner can give the company or foreign worker a proper assessment, based on the current and long-term plans for the company, the staff member and their family members. The quota work permit is available to foreigners whose skills fall into specific categories where there are shortages in South Africa. These skills categories are determined by the Minister of Home Affairs, who decides annually on the number of permits to be issued for each skills category, to satisfy the needs of our economy. Normally only around 15 to 20% of the quotas are filled, as Home Affairs does not actively market and recruit abroad, and it is difficult for skilled foreigners based overseas to handle the application process on their own.

PERMANENT RESIDENCE
South Africa, like most countries, allows non-nationals to change from temporary status to permanent residence, provided they meet government criteria. Permanent residence gives foreigners the freedom to live and work in a country without restriction on study, business activities and so on – in essence, enabling them to engage in any activity for which they would normally require a permit.

Under South African law, a foreigner may apply for indirect permanent residence if he has been granted a work permit of a type that allows this and has worked in the country for a minimum of five years for example, a general work permit.

Direct residence candidates, who do not have to wait five years are those who have been granted an exceptional skills work permit or a business permit, are relatives of citizens or permanent residents, are financially independent or have been granted a retirement permit.

EASY/FAKE PERMITS
Another growing problem is the number of fly-by-night operators who promise to obtain permits for foreign workers quickly and easily.

Anyone promising a quick, easy solution is probably offering an illegal service, as the timing and application processes have been laid down by law.

It is estimated that between 50 and 60% of permits in the Gauteng region are illegal. Foreign language speakers, in particular, who do not understand the application process, may contact someone they believe to be a lawyer, but who is in fact neither a lawyer nor a registered practitioner. We’ve had cases of people, for example, being issued with work permits that have not only turned out to be fakes, but for which they have been grossly overcharged, paying
R20 000 or R30 000 per permit.

While these permits may bear what appears to be a Home Affairs stamp and may be signed by an “official”, they are illegal, and legal action can be taken against the practitioner and Home Affairs employee found to be providing such permits, the permit holder and an employer who employs such a person.

With applications for inbound permits set to keep increasing because of South Africa’s inability to keep up with the demand for internally trained professionals, potential employers of foreign workers are advised to carry out some basic checks before choosing an immigration practitioner. To be in this business, you have to be registered with Home Affairs, so potential employers should first check on this, and also the immigration practitioner’s company registration and VAT numbers. In addition, they should look into the immigration company’s history and track record, and ask for and follow up on trade references to ensure that they are dealing with a reputable business.

In terms of processing time, Home Affairs has 30 calendar days to process an application. If it intends rejecting the permit application, it must give written notice to the applicant, and must provide a legal reason for the rejection. The applicant or practitioner then has 10 working days in which to answer officials’ queries or lodge an appeal.

There are no shortcuts to this process. Foreigners applying for a change of permit or extension should do so well before their current permit expires to remain in South Africa legally, and a minimum of 30 calendar days before expiry.If the current permit expires thye applicants may not travel and reenter the country until the application is finalized. The exception would be where the applicant holds more than one passport. No Home Affairs official may ask for any money other than the application fee, and any permit obtained through favouritism, gifts or money is illegal.

Agents, or even registered practitioners who are not experienced in the type of application being handled, often obtain the wrong work permit with serious implications, as some have limitations regarding renewal or application for permanent residence.

ASYLUM SEEKERS AND REFUGEES
In a judgment delivered in April 2008, in the matter of Dabone and Others versus the Minister of Home Affairs and Another, the Cape High Court ruled that foreigners registered as asylum seekers or refugees may apply for temporary residence permits – including work permits – while in South Africa. Previously they were required to return to their country of origin before applying, and could not do so without giving up their refugee status.

In terms of the Dabone judgment, it is critical for HR managers and other staff recruiters to know that Home Affairs cannot refuse to issue work permits to individuals who have been granted asylum seeker or refugee status in South Africa, and that these individuals no longer have to leave the country before applying for work or other permits. There are many skilled people in this category who would be an asset to their company.

TRAIN YOUR STAFF
In order to ensure that the complexities of employing talent from outside the borders of South Africa is expedited in a legally and procedurally correct manner, companies are advised to ensure that their HR staff are well trained in managing these matters.

Leon Isaacson is the Managing Director of Global Migration SA (www.globalimsa.com).

Foreigners should carefully choose the immigration practitioners they engage to apply for permits to live and work in South Africa, as the application process are shared between governments as records of the application process are shared between governments  on an individual’s travel or movement record.  Any immigration offence, such as overstaying after a permit has expired or being in possession of an illegal permit, may be registered worldwide and will count against an individual when further applying for South African permits or visas to other countries.

In South Africa, only an attorney, advocate or registered immigration practitioner who meets government criteria and is bound by its code of conduct may legally represent a foreigner in applying for permits at Home Affairs. But many fly-by-night operators provide permits illegally, at exorbitant prices, leaving unsuspecting people open to legal sanctions if caught with such documents.  These operators often prey on foreign communities that do not understand our languages well.

Before engaging a practitioner, it is important to establish that person’s credibility.  Ask for references from current clients and check the practitioner’s registration certificate. Many people who call themselves immigration practitioners or agents are third parties who act as intermediaries, approaching registered practitioners on behalf of applicants and adding a substantial mark-up to the practitioners’ fees. To prevent “double handling,” as this is called, my company, Global Migration, will not deal with any agent if we can’t speak directly to their clients.

Some agents act as runners, merely collecting documents from applicants and handing them in at Home Affairs. They may tell Home Affairs that they are representing clients, although legally they may not do so. When applications are rejected, usually because the documentation they have provided is incomplete or incorrect, these agents often ask applicants for more money to reapply.

The actual procedure is that Home Affairs needs 30 calendar days to process an application. If it intends rejecting the permit, it must give written notice to the applicant, and must provide a legal reason for the rejection. The applicant or practitioner then has 10 working days in which to answer officials’ queries or lodge an appeal.

There are no shortcuts to this process.  Foreigners applying for a change of permit or extension should do so well before their current permit expires to remain in South Africa legally. No Home Affairs official may ask for any money other than the application fee, and any permit obtained through favouritism, gifts or money is illegal.

In South Africa there is also no such thing as a provisional application. “Practitioners” will sometimes tell clients that they will submit a provisional application and later hand in any additional documents required. In fact, all required documentation must be attached to the application form: if incomplete, it will be rejected.

Agents, or even registered practitioners who are not experienced in the type of application being handled, often obtain the wrong work permit with serious implications, as some have limitations regarding renewal or application for permanent residence.

Applications for corporate permits, too, are often handled incorrectly. We’ve recently taken over the application process for three large companies whose previous practitioners kept them waiting for several months without achieving results. Once an application has been started, the process must be undone and the previous application withdrawn before a new one can be submitted. When foreign skills are urgently needed on engineering projects, for example, such delays can cost companies penalties of millions of rand per day. However, short-term permits to bring in project managers can be obtained.

In addition to checking a practitioner’s credentials and experience, prospective clients are advised to look at pricing and quality of service before engaging a practitioner, as these vary tremendously.

The South African government and its social partners are considering various interventions to help minimise the impact of the global economic crisis on the country.

Delivering his state of the nation address at the opening of Parliament in Cape Town on Friday, President Kgalema Motlanthe said the crisis posed a serious danger to South Africa’s economy, which is strongly integrated into the world economy.

“With the economic crisis, lower demand has precipitated a scaling down of production, the creation of jobs has been negatively affected, and in some sectors retrenchment has become a reality,” Motlanthe noted. “These difficulties have coincided with a period in which inflation and interest rates are still too high.”

As a result, he said, South Africa, along with most other countries, had been forced to tone down its growth and job-creation forecasts, as well as its revenue expectations.

He said the government and its social partners had agreed to devise interventions to minimise the impact of the crisis.

Public investment and employment
“Firstly, government will continue with its public investment projects, the value of which has increased to R690-billion for the next three years,” Motlanthe said.

Where necessary, he added, the government would “find creative ways” to fund its infrastructure expansion projects. This would include support from South Africa’s development finance institutions, loan finance from international agencies, partnerships with the private sector, and the use of resources controlled by workers, such as pension funds.

“Secondly, we will intensify public sector employment programmes,” Motlanthe told Parliament. This would involve finding ways of expanding employment in health, social work, education and law-enforcement, as well as speeding up the introduction of the next phase of the Expanded Public Works Programme.

Private sector ‘mitigating’ steps
Thirdly, the President said, the private sector should take “mitigating” steps to counteract excessive investment slowdown and unnecessary closures of production lines or plants.

For its part, government would adapt industrial financing and incentive instruments to help deal with challenges in various sectors, and also encourage development finance institutions to help firms in distress.

Other alternatives are also to be explored, the President said, including longer holidays, extended training, short time and job-sharing. This would be combined with promoting the Proudly South Africa campaign and taking stronger action on illegal imports.

Sustaining social spending
Fourthly, the government would sustain and expand its social spending, including progressively extending access to the child support grants to children up to the age of 18, and reducing the age of eligibility for old age pensions to 60 years for men.

The government would also use the Social Relief of Distress Grant and food security measures more widely, in part to help people who were unprotected by the Unemployment Insurance Fund or who had exhausted their benefits.

“We shall also continue to pay special attention to the challenge of anti-competitive behaviour on the part of some of our corporations,” Motlanthe said, at the same time urging civil society to “enhance its own level of activism to ensure … that as input prices decline, the benefit is felt by the population.”

Government debt levels
Motlanthe said the government would continue to ensure that government borrowing levels remained prudent and sustainable, and pursue rapid reduction in debt levels whenever conditions turned for the better.

The President said he was optimistic that South Africa would be less severely affected by the crisis than many other countries, due to the country being transformed through fundamental macroeconomic reforms that, since 1994, had opened the way for the majority of South Africans to participate in the mainstream economy.

“Indeed, in a period in which others are experiencing or projecting recessions, South Africa and the rest of the continent are still poised for growth, even if at a slower rate,” he said.

Source: BuaNews

Until the middle of 2008 there was nothing untoward in the forecasts for the world economy except that crude oil prices seemed to be on an upward spiral at USD 140 (now USD 40), commodity prices were high and there were murmurs of possible problems in the US housing market. Employment opportunities seemed to be abundant with demand in many sectors outstripping supply by far. South Africa had a number of programs in place to attract skilled foreigners to work here as our growth rates, emigration and a poor education and training system combined to create a situation in which the skills required for growth were not available. This stretched across all economic sectors.

After the credit crisis last year, governments around the world had to intervene and guarantee USD 2 trillion (this may rise to USD3 trillion), but in the process many shaky companies and industries have been exposed or left with inventory which cannot be sold, and declining businesses (eg the motor industry).This has led to massive restructuring and retrenchments.

In general terms skilled workers are the most mobile in the workforce and will probably find work in their own countries or in other countries, provided there are opportunities available in these countries. A current example is that while the UK and US are experiencing retrenchments in
construction sectors, Canada, Australia, China and South Africa are experiencing shortages so there is a very real opportunity for people with the right skills to obtain work contracts in these countries.

For South Africa, there is a unique opportunity to recruit skills which we know have not been trained locally and are required for the next few years in our country in order to build a number of industries such as IT, construction, engineering, education and other with the skills critical to these sectors. While South Africa may not have been the first choice for foreigners to come and work because of the poor exchange rate and other negative perceptions of the country, the country should be sold on the basis of lifestyle, relatively cheap cost of living compared to other countries and our first world standing in many industries.

It will take a concerted and sustained effort by Government and the private sector to ensure that we take this unique window opportunity to promote and develop our country.

The UK Home Office is due to announce that it is to introduce rules that will require South Africans to obtain a UK visit visa to get into the country.
The measures are intended to limit the exploitation of the route by illegal immigrants, terror suspects and people smugglers.

The plans are to be presented to the House of Commons today (9 February 2009) by Home Secretary, Jacqui Smith.

The Foreign and Commonwealth Office opposed the idea but the Home Office has apparently won the battle. The new rules follow warnings, from the government and UK immigration to the South African government, over the ease with which non-south-African citizens can obtain South African passports and then use to travel without a UK visa.

Calls also came from UK law enforcement agencies who have become increasingly concerned that the route between South Africa and the UK is being exploited by criminals. Immigration minister, Phil Woolas, said, “the government said it would get tough and we meant it.

The move is likely to prove controversial as South Africans account for the fifth largest group of UK visitors, after Americans, Australians, Canadians and Japanese. 420,000 South Africans visited the UK in 2007 and 1,190 were refused entry.