Misapplication of Immigration law is costing South Africa dearly

Misinterpretation, or misapplication, of the law is costing South Africa dearly in terms of lost critical skills currently locked out of South Africa by the Department of Home Affairs, according to top immigration experts.

The current critical skills list informing the Department’s visa decisions only makes provision for applicants with proven qualifications, despite the law also making provision for those with proven experience in their field. The result is many experienced professionals who could pass on their skills in South Africa are being prevented from doing so. “It is as if you are saying a new graduate is more valuable that somebody with 20 years experience – it makes very little sense,” says one expert. “The (Immigration) Act and the regulations make provision for people with qualifications OR skills to qualify. In my view the current list is unlawful but, again, it applies until it is challenged. There are many people with years of experience that we can benefit from, but they are prevented from getting this critical skills work visa because of this issue with qualifications.”

Home Affairs officials also appear reluctant to issue general work visas, even in situations where refusal to do so is unlawful: “There seems to be a policy decision to not issue general work visas to foreigners. I think it is Home Affairs’ way of trying to encourage employers to hire South Africans, which is not a bad thing but it has to be done lawfully,” the lawyer says. 

Home Affairs urgently need a more investment-friendly approach to visa administration, particularly in the context of low growth and difficulties in attracting investment. 

The Cape Chamber is actively campaigning for urgent visa reform to give effect to government’s calls for more foreign investment. Investors require a business-friendly environment, which includes efficient administration. Persistent challenges in obtaining work visas suggests a disconnect between promises and policy implementation. 

At stake are current efforts to attract private investment in government’s critical logistics and energy sectors. Partnership in these areas will require an influx of critical skills and the country can ill-afford further delay. We need all the help we can get, from both foreigners and government functionaries. 

We concur with those who say visa applications and processing needs to be made simpler. This can easily be done without compromising on security.

We also reiterate our call for Minister Aaron Motsoaledi to appoint an Immigration Advisory Board to expedite this process in the best interests of all concerned. 

Jacques Moolman
President of the Cape Chamber of Commerce & Industry