A draft Bill on immigration aims to ease restrictions on skilled foreigners coming to South Africa
Khadija Magardie
The new draft Immigration Bill looks geared to promote economic development by easing restrictions on monied and skilled would-be immigrants.
Its predecessor, the White Paper on International Migration, focused largely on controlling the influx of illegal, generally unskilled migrants – and put less emphasis on the real crisis issue, the shortage of skilled labour.
The Department of Home Affairs has called for public comment and input on its latest draft Bill, which will shake up some old- style laws slammed as detrimental to economic growth.
There has been wide-ranging consultation: the Departments of Justice, Provincial Affairs and Local Government, Trade and Industry; entities like the Anglo-American Corporation and the South African Chamber of Mines; even the United States Immigration and Naturalisation Service gave input.
Previously, all categories of employees fell within the sometimes paranoid ambit of the general work permit application. This stipulated that an employer had to prove there was no qualified South African available to perform the same work. In addition, an applicant faced deportation if he or she was found to be engaging in business other than the job description stipulated on the application form.
Mario Oriani-Ambrosini, special adviser to the minister, emphasises that few aspects of the Bill are new, but rather “revamped” pieces of legislation that had previously fallen into disuse. However it also introduces several new categories of permits that may be issued to foreigners.
An “investor and self-employed person’s permit” may be issued to a foreigner intending to establish a business in South Africa. A foreign applicant must invest a prescribed amount, part of the intended book value of the business. Subject to certification by an accountant, a permit holder would be entitled to conduct business in the country.
A new category is that of an “exceptional skills or qualifications permit” – which exists in many countries, such as the US. In terms of this category, a permit may be issued to an individual who qualifies in terms of certain criteria, which the department is still defining.
Oriani-Ambrosini acknowledges that the parameters of what may be considered exceptional skills are broad, but says the department will apply a “discretionary rule” in assessing applications. He also said the provision recognises the diversity of invaluable skills, regardless of whether or not they can be pigeon-holed in categories.
An “intra-company transfer permit” may be issued to a foreigner who is employed abroad by a business operating in South Africa in “a branch, subsidiary or affiliate relationship, and who by reason of his or her employment is required to conduct work in the Republic”.
The “corporate permit” follows consultations with the Departments of Labour and Trade and Industry. Such a permit may be issued to a corporate applicant, who will then be allowed to employ foreigners. The Immigration Service will determine the maximum number of foreigners to be employed by such applicants. The applicant, as has always been the case, must furnish financial guarantees to defray the costs of possible deportation of its employees.
The Bill will promote economic growth by “facilitating foreign investments, tourism and industries within the Republic, which are reliant on international exchanges of people and personnel”.
By extension, the active participation of South Africa in the global marketplace, and an easing of protectionist restrictions that kept competition out, would be encouraged, the drafters of the legislation hope.