The Department of Home Affairs (DHA) has been forced to withdraw its latest visa rules which came under heavy criticism on several fronts — not least because it promulgated the Second Amendment of the Immigration Regulations a day before the closing date for public comments on the draft version and became effective on 28 March, which is a constitutional requirement.
The new regulations allowed for a “remote work visa”, also known as a digital nomad visa, and finally introduced a new points system for foreigners with “critical skills”, which requires highly skilled international workers to have “the ability to adapt within the republic”.
Home Affairs Minister Aaron Motsoaledi admitted at a media briefing in Pretoria on Tuesday that the National Economic Development and Labour Council (Nedlac) had questioned the gazetting of the regulations, because it had curtailed the process, saying it was “ill-advised”.
“We do agree with Nedlac and I personally was ill-advised to allow that to happen,” said Motsoaledi.
However, he says only minor issues will be corrected.
This would be the second official correction to the document: the first was on 2 April when he had to correct the date of his signature to 2024, not 2023.
Motsoaledi also claimed in the regulations gazetted on 28 March that he was publishing the amendments after consultation with the Immigration Advisory Board — which does not yet exist.
On 3 July 2023, in an answer in Parliament, he admitted that he had not appointed the Immigration Board in terms of sections 4 and 5 of the Immigration Act because the DHA was developing a new immigration, refugee protection and citizenship policy framework “which is en route to Cabinet”.
As yet, that framework has not been processed.
More confusion
The equivocation is likely to cause even more confusion in the market in the wake of another of Motsoaledi’s “ill-advised” moves — the 21 December directive instructing foreigners without a visa renewal to leave South Africa by the end of February.
This resulted in visitors cutting short their holidays in fear of being banned. Some people were banned from SA, despite Motsoaledi’s repeated claims that possession of a visa renewal receipt would be sufficient to prevent such action.
Earlier this week, Daily Maverick reported that the new regulations would require applicants for the digital nomad visa to jump through hoops and that if they stayed in the country for longer than six months, they’d have to register with the SA Revenue Service.
Some have raised concerns that these requirements do not make the visa internationally competitive.
The regulations provide for new remote work visas and for a new points system designed to provide a more flexible pathway for highly qualified and experienced foreigners to work in SA.
Business Day has reported that Nedlac last week asked the department to withdraw the regulations, pending revisions to take account of comments from the public.
Motsoaledi said he would re-gazette the regulations next week.
He said the new points system replaces the general work visa system, but not the critical skills visas, which will now be updated as and when proven shortages occur.
“The change we are bringing in these amendments is to do away with the requirement of having to go to the Department of Employment and Labour, and replace it with a point-based system. The point-based system will consider at least six criteria: Age, qualifications, language skills, work experience, offer of employment and the ability to adapt within the republic.
“We are considering replacing (ability to adapt within the republic) with income or salary the individual is being offered.
“Unfortunately, we cannot expand more on the point-based system because it still needs to be gazetted as we want to hear what the public will say about the scoring or points awarded.”
Motsoaledi said although it had been reported “many times” that the country was missing critical skills because the DHA took so long to process applications, that was not the case.
“We don’t have a backlog on critical skills… It is easy to get the critical skills visa.”
He said that if it was listed in the gazette, the applicant provided a letter of appointment from the company and there was no delay. DM