An explanation regarding legislation changes to the issuing of visitors permits. By Julian Pokroy
In recent immigration law history there has not been any specific aspect which has been more confusing in the eyes of some than the question surrounding the issuance of visitor’s permits enabling a limited degree of “work” to be conducted.
As I have regurgitated in numerous articles over the last few years, this section of the Act has been much abused by many immigration practitioners, employers and applicants, resulting in the current tightening up in the process as elucidated in a recent article in HR Future. Pursuant to that article, certain further changes have taken place which bear absolute relevance to the whole question.
We indicated in the previous article that Section 11(2) visas would not be issued as a matter of course any longer and would now suffer a duration disadvantage in that such visas could not be issued for a period of longer than 90 days and that there would in all probability be no extensions allowed.
For purpose of clarification, Section 11(2) falls under the heading of Section 11, which is entitled “Visitors Permits”. This section reads as follows: “The holder of a visitors permit may not conduct work, unless authorised by the Director General in the prescribed manner and subject to the prescribed requirements and conditions”.
The specific circumstances under which such permit would in fact be granted by the Director General were previously specified under the old Act but that the new Act has failed to give guidelines in this regard.
Typical examples in the past of the kind of circumstance which would allow a person to “conduct work related activities” whilst in South Africa, (that is, not on a work permit) would be, inter alia, but not limited to, the following:
• Film crew coming into the country to film a short documentary or news item;
• An actor or actress coming into the country to briefly perform;
• A surgeon coming into the country to demonstrate a new surgical procedure; and
• An expert coming to give a lecture in the country.
No further guidelines are given but the gist is what is stated above. The new development which has taken place now clarifies certain aspects of the Section 11(2) Visitors Permit and this is dealt with hereunder.
It is now required that all applications for Section 11(2) Visa must be made at least 10 days in advance of the intended arrival of the individual foreign national, directed to the Director General of Home Affairs at Head Office of the Department of Home Affairs.
It is quite clearly further stated that such power to consent to a Section 11(2) “work” authorisation vests in the Director General and him only. No downward delegation authority is permitted.
The Director General will then have to exercise his discretion as to whether the application before him in fact complies with the “prescribed requirements and conditions” as envisaged.
It has now become necessary for the applicant in such a matter to substantiate with full documentary support and motivation for such visa and to this end the position that has been created is that it becomes a formal application for a visa, which has to go through the normal channels of visa adjudication.
In addition to a letter of invitation by the local company, full particularity will have to be given relating to the nature of the “work activity” to be conducted whilst in South Africa, with dates, times, venues and descriptions of such activities being an integral part of such application.
Supporting documentation in respect of each and every one of these aspects will have to be provided. The Director General of Home Affairs must then apply his mind carefully and judiciously in coming to a conclusion.
The outcome of such decision must then be communicated to the embassy where the application would technically have been directed and the applicant may obly then proceed to South Africa.
The communication of such positive decision, if it is indeed a positive decision, must then be presented either to the embassy to endorse on the applicant’s passport or to the immigration official at the port of entry.
It is quite clear that entry cannot be “negotiated” at the port of entry in terms of Section 11(2). This brings about a reform of the Section 11(2) process and certainly should plug all the loopholes in the abuses that have been taking place.
It is abundantly clear that the individual must then come into South Africa on his/her Section 11(2) Permit, perform the functions for which they have been authorised and then leave. No application for a change of conditions to a work or other permit will be permitted and this will be reinforced when the Immigration Amendment Act comes into operation shortly.
It is also clear that a Section 11(2) Visa authorising such “work related activities” to be conducted cannot be extended. It is important further to note that other types of visitor’s permits such as holiday visas, business visas, short duration study visas and medical visas are not affected in this process.
also wish to draw attention to the fact that the Immigration Regulations, which would be required to enable the Immigration Amendment Act 11 of 2011 to come into operation, are currently under consideration by the Immigration Advisory Board, who must, in terms of the Act, advise the Minister on regulations.
Readers are reminded that the Immigration Amendment Act of 2007, which has not yet been placed into operation, will in all likelihood also be the subject of new regulations and will in all likelihood also come into operation with the 2011 Amendment Act.
One of the predominant amendments in the 2007 Act would be the reversion to a four year Intra-Company Transfer Work Permit, although the non extendibility thereof would be retained.
Julian Pokroy is an Immigration Specialist Attorney, www.immigration.org.za, and currently heads the Law Society of South Africa’s Immigration and Refugee Law Specialist Committee and the Immigration, Nationality and Refugee Law Committee of the Law Society of the Northern Provinces. He is on the South African Law Reform Commission Committee.