Much has made of the proposed amendments to the Immigration Act and the New Immigration Regulations that are to be ‘implemented’ on the 1st of April 2014. Well, the 1st of April will come and go and for sure no new laws will be implemented! So why all the hullabaloo! The only given at this stage is that the Immigration Act 13 of 2011 has been enacted but its promulgation has been delayed pending the final deliberations over the Immigration Regulations, which is still not finalized, and therefore the current immigration laws are still very much in place.
- Spouse permits in terms of permanent relationships and five year evidence;
- Interrelation with the Department of Labour and Trade & Industry in the submission of work and business permits respectively;
- Introduction of critical skills and the elimination of exceptional skills;
- Removal of change of status for most status personal attendance is receiving widespread attention.
- Over-zealous sanctions on administrative overstays and other criminal sanctions
5 year evidence of cohabitation and or financial sharing of responsibilities – this test is clearly out of touch with the reality of what can be reasonably considered to show permanent relationships as it is currently the same test for permanent residence and therefore it renders no category for temporary residence and thus it in our view is irrational – if anything the draft regulation should unpack the actual requirements for financial sharing and cohabitation;
2Work & Business Permits:
Direct intervention by the department of labour & trade and industry, respectively, in SA compounds the process to properly prepare a work or business permit as many foreigners who are abroad would need to engage directly with such government departments whilst they are abroad which impinges on their ability to prepare such permit application and this is contrary tot the stated Preamble of the Immigration Act;
3Penal sanction on overstays:
This can hardly been considered as reasonable sanction in terms of the crime befitting of the punishment and the harshness of the sanctions for administrative overstays are clearly abusive and unconstitutional;
4The inability to change status in South Africa other than exceptional circumstances:
It would conflict with the Preamble of the Immigration Act as foreign applicants would have to return to their counties and apply abroad when they would need to engage SA government department for certain documentation before they can apply for permits.
5Anomalies apparent in the new Immigration Amendment Act of 2011
As read with the proposed ‘draft’ Immigration Regulations like the existence of exceptional skills for permanent residence yet the Regulations intend to do away with exceptional skills.
It is therefore advised that foreigners consult immigration lawyers who are adept and trained in the field of law to comment on legal matter like immigration and not consult with legally untrained agents who are neither regulated nor equipped to comment on the law as it stands.