immigration

Renewal / Extension of All Permit Categories & Change of status

Foreigners should please ensure to keep their temporary residence permits valid at all times and should furthermore be reminded that the act stipulates that a foreigner may only enter South Africa if he/she can produce a passport to be valid for no less than 30 days after the expiry of intended stay in South Africa.

It is furthermore prescribed in the regulations that applications for the extension of a permit or a subsequent permit must be done 30 calendar days prior to the expiry of the temporary residence permit. Foreigners should, in conclusion, be reminded that an application for status does not provide a status and does entitle a foreigner to benefits under the act not to sojourn in the republic pending the department's decision in respect thereof.

Temporary residence

Visitors’ permits

This type of permit is governed by section 11 of the immigration act read together with regulation 19 of the act which regulates the technicalities in this category. Section 11 provides that a visitor’s permit may be issued to a foreign national in respect of visits to South Africa for all temporary purposes, which shall not include work, other than those purposes for which the act specifically regulates.

This type of permit includes visits for the purpose of the following:

• Tourism;
• Business;
• Education shorter than three months;
• Medical treatment shorter than three months;
• Visit of a relative for a period shorter than three months;
• Working activities shorter than three months conducted in pursuance of an employment contract concluded abroad, remunerated abroad and partially calling for performance abroad.

The director-general of home affairs does have discretion to expand on the categories contemplated in this section. The holder of a visitors permit may not conduct work.

A notable departure from the old aliens control act and a departure from the above, is that a visitors permit can now be issued by the department of home affairs to a foreign national for a period not to exceed three years where the applicant has satisfied the department that he/she controls sufficient available financial resources, which may be prescribed from time to time, and is engaged in the republic in:

• Academic sabbaticals;
• Voluntary or charitable activities;
• Research; or
• “Other prescribed activities and cases”. back to top

Study permits

A very important category of temporary residence is that of study permits. These permits are regulated by section 13 of the immigration act read with regulation 22 of the regulations. In the page dealing with visitors permits we alluded to the fact that courses of less than three months duration can be dealt with as visitor’s permits. This section deals with study permits where the duration of the course is of longer duration.

Study permits can be issued by the following bodies:

• The department of home affairs, or at the option of the applicant;
• The department through the registrar’s office or a designated official of an institution of learning where the foreigner intends studying, provided that such institution:
• Has been approved by and is in good standing with the department;
• Certifies that it has received guarantees to its satisfaction that such foreigners tuition fees have been paid;
• Has received the “prescribed guarantees” that such foreigner will have sufficient means to support him/herself while in the republic studying;
• In the case of a minor, the name is provided of a person present in south Africa who is, or who has accepted to act as such minors guardian whilst such minor is studying in the republic;
• Has given an undertaking to provide a prescribed periodic certification that such foreigner is satisfactorily performing his/her curriculum of study; and
• Has given an undertaking to notify the department of home affairs when such foreigner has completed his/her studies, or is no longer performing satisfactorily.

A departure from the aliens control act that is of note from the new study permit provisions is embodied in section 13(3) of the immigration act, read with regulation 22(6) and (7) of the regulations. The provision is made for the holder of a study permit to conduct “work” on a part time basis for a period not exceeding twenty hours per week provided that the twenty hour week maximum is not applicable during academic vacation periods and the registrar of the institute of learning consents to it in writing.

This paves the way for the first time for holiday employment for students. A further departure relates to a student, generally at tertiary educational institution level, enabling such student to conduct work in the form of practical and on the job training in a field related to his/her studies.
This indulgence is subject to the following requirements:

• A letter from the educational institution concerned confirming that practical training is required or advantageous to complete the intended study experience; and
• A letter from the prospective employer offering such practical training. back to top

Business permits (Establishment of a business in South Africa)

This category applies to a foreign national applicant who intends or has established a business in south Africa and intends investing in it or in an established business the prescribed financial contribution of zar 2.5 million and to the members of such foreign nationals immediate family, provided that:

• The director-general of home affairs may waive or reduce such capitalisation requirements for businesses prescribed to be in the national interest or when so requested by the department of trade and industry; and
• The permit shall lapse if the holder fails to prove within two years of the issuance of the permit, and three years the after, to the satisfaction of the director-general of home affairs, that the prescribed financial contribution to be part of the intended book value is still invested as contemplated in this section.

It is an integral requirement in this category that a business plan be prepared which will demonstrate sustainability and viability in the short to medium term, this requirement is present in the temporary residence category for business permits and it is therefore necessary when applied for permanent residence in this category to demonstrate that the business has in fact succeeded, remained viable and sustainable and indeed employed the five (5) south African citizens or permanent residents which this category demands.

Our office has the capacity through an associate to do a thorough and comprehensive business plan should you require the services. Please contact office directly should you require this service. This webpage has been updated to include changes brought about by the immigration amendment act (number 19 of 2004) and the new immigration regulations, both of which came into effect by proclamation on the 1st July 2005. back to top

Medical treatment permit

The medical treatment permit covers medical treatment at a private or public hospital or health facility or any other bona fide institution of treatment. This includes, but is not limited to, health farms, sanitaria, old age homes, physiotherapy or rehabilitation centres and detoxification centres.

The permit can be granted by:

•  the department of home affairs; or
• The department through a designated official of the institution. back to top

Relatives permit

This category of permit may be issued to a foreign national who is a member of the immediate family within two degrees of kinship to a South African citizen or permanent resident, provided that the South African citizen or permanent resident provides the “prescribed” financial assurances.

In terms of the regulations the “financial assurance” referred to shall be the following:

• Joint means of support of the sponsor (the SA citizen or resident) and the foreign national must be demonstrated sufficient for the duration of the permit.
• The minimum requirement in monetary terms shall be zar 5 000.00 per month per applicant. This shall however not apply in the case of a spouse or a dependant minor child.

Note:

• The period of validity of a relatives permit shall be twenty-four (24) months.
• A relative’s permit issued to a spouse lapses upon the dissolution of the spousal relationship. The department may at any time satisfy itself that a good faith spousal relationship exists and/or continues to exist.
• The holder of a relatives permit may not conduct work. back to top

Work permits

The following categories of work permit are available in terms of the immigration act (as amended).

Quota work permits (section 19(1) of the immigration act)

• An applicant may only apply for a work permit in this category until the numerical quotas have been exhausted.
• An applicant for a quota permit may enter South Africa on an approved quota permit without first having secured a job offer.

General work permits (section 19(2) of the immigration act)

May be issued to an applicant who does not fall within a quota category or class, who is possessed of a written and time specific work offer, in line with his/her skills and qualifications and which further complies with all the requirements.

exceptional skills work permit (section 19(4) of the immigration act).

The real test in this category is whether the skills set of the applicant is available at all in South Africa. Each case will be judged on its own merits and history in addition to the above.

Intra-company transfer work permit (section 19(5) of the immigration act)

May be issued to a foreign national who is employed abroad by a company which also operates a branch/subsidiary or affiliate business in South Africa. The applicant must, by virtue of his/her employment, be required to conduct work in South Africa, for a period not exceeding two years.

Corporate work permits (section 21 of the immigration act)

A corporate permit may be issued to a corporate applicant after consultation between the departments of home affairs, labour and that of trade and industry. This consultation is designed to determine the maximum number of foreigners which may be employed in that industry. This type of permit caters predominantly for the mining, agricultural and forestry industries which employ the bulk of the migrant labour employed in South Africa. back to top

Permanent residency

Direct residence

A foreign national who has:

1. Been the holder of a work permit (including the holder of a corporate permit) for a period of five (5) years, and has received an offer of permanent employment, provided that:
• A certificate must be submitted by a chartered accountant of the prospective employer, stating that the job description exists and is intended to be filled by such foreign national.
• The department of labour issues a certificate to the effect that the foreign national's salary and benefits are not inferior to that being paid to SA citizens and permanent residents, with due regard to the relevant market segment into which the foreign national is to be employed; or
2. The foreign national is the spouse of a SA citizen or permanent resident provided that:
• The department of home affairs is satisfied that a good faith spousal relationship exists; and
• Such permit is conditional that it shall lapse if at any time within three (3) years if the spousal relationship dissolves. back to top

Permanent offer of employment

The requirements in this category are the following:

• The applicant must have received a permanent offer of employment provided that:
• The prospective employer must submit a certification by a chartered accountant stating that the job description exists and is intended to be filled by the foreign national applicant; and
• The department of labour issues a certificate to the effect that the foreign national salary and benefits are not inferior to that being paid to SA citizens and permanent residents, with due regard to the relevant market segment into which the foreign national is to be employed; and
• The applications falls within the yearly limits of available permits prescribed from time to time for each sector, trade of industry. back to top

Relatives permit

This category of permit may be issued to a foreign national who is a member of the immediate family of a South African citizen or permanent resident within the first degree of kinship i.e. a father, mother all children and this will include a biological or judicially adopted child or adoptive parents and step parents.

An undertaking would have to be given by the South African citizen or permanent resident relative regarding the financial, a medical, physical and emotional responsibility for the applicant. This is not applicable where the relative is the parent of a minor child of a citizen or permanent resident.

In order to obtain the remaining qualifying requirements in this category I would suggest that you visit the temporary residence permit category of “relatives permit” on our web site bearing in mind that in the temporary residence category there is a two degree of kinship requirement.

A relative may not work whilst on a relative’s permit. The “financial means” of the sponsoring relative and the emigrating relative will be five thousand rand (zar 5000, 00) per relative applying for permanent residence. back to top

Retired persons permit

A retired or financially independent person may apply for temporary residence in this category provided he/she complies with the requirements set out hereunder and which are coupled to a lifelong right to a pension or an irrevocable retirement annuity or prescribed minimum income off investment(s) or has the prescribed financial resources to qualify in the financial net worth category.

The monetary requirements are as follows:

• Retired persons:
  a pension with a minimum value of zar 20 000.00 (twenty thousand rand) per month or an irrevocable retirement annuity delivering this amount or a combination of assets delivering this amount monthly. This amount is calculated per applicant in this category; or
• Financial net worth:
  a prescribed minimum net worth consisting of an amount of zar 7, 5 million (seven million five hundred thousand rand) coupled to a payment to the director general in the amount of zar 75,000 (seventy five thousand rand).

In certain circumstances a retired person may be permitted to conduct “work”. back to top

Exchange permit

This category of temporary residence permit is designed to cover persons participating in programmes of cultural, economic or social exchange organized by an organ of state or a public higher educational institution, in conjunction with an organ of a foreign state. back to top

Citizenship

By birth

Births after 6th October 1995
in terms of the south African citizenship act (number 88 of 1995) a child born in south Africa and of which are of the parents was a south African citizen or permanent residence permit holder at the time of the child’s birth, shall be a south African citizen by birth.

Births prior to 6th October 1995
the position in respect of births prior to the 6th October 1995 was governed in terms of the South African citizenship act of 1949. Because that act contained a series of different requirements over the years it is necessary for such an applicant to complete an application for determination of status.

By descent (ancestral citizenship)

A child born to parents, at least one of whom was a South African citizen at the time of the child’s birth would have a claim to South African citizenship by descent.

By naturalisation

A permanent resident in South Africa who complies with the requirements set out hereunder may apply for naturalisation.

The requirements are as follows:

• In respect of majors
• A valid permanent residence certificate or certificate of exemption;
• One year’s ordinary residence in south Africa prior to the application for naturalisation;
• Four years of physical (actual) residence in South Africa during the eight years before the application for naturalisation. (this excludes the year of ordinary residence);
• In the case of an applicant for naturalisation being married in a spousal relationship with a south African citizen, then two years of permanent residence and two years of marriage/spousal relationship to the south African citizen spouse prior to the application;
• Be of good and sound character;
• Be able to communicate in any one of south Africa’s official languages satisfactorily;
• Have adequate knowledge of the duties and responsibilities of a South African citizen.
• In respect of minors
• The parents of a minor applicant can apply for naturalisation on behalf of that minor child, at any time provided that the minor child is permanently and lawfully resident in South Africa.