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).