What law governs South African immigration?

What division of government is responsible for the administration of immigration rules and for the processing of temporary and permanent residence applications?

How long is a temporary work permit valid?

Can temporary and permanent residence applications be filed in South Africa?

How long does it normally take for a temporary and permanent residence applications to be adjudicated?

What is the degree of difficulty and typical probability of success of well-prepared temporary and permanent residence applications?

Is special consideration given to persons of certain nationalities?

Can specialist immigration lawyers assist with the application process?

What law governs South African immigration?

The Immigration Act of 2002 and the Immigration Regulations govern the entry of foreign nationals into South Africa, their temporary and permanent residence in the country, and their exit from South Africa.  This legal regime came into legal effect at 6.00 pm on 7 April 2003 and was implemented for the first time by the Department of Home Affairs from noon on 8 April 2003.  The Immigration Regulations contain the principal substance of the immigration rules, which, through the policy-making authority vested in the Immigration Advisory Board, the Immigration Regulations are expected to change from time to time. 

As opposed to the Aliens Control Act of 1991 (which was repealed by the coming into force of the Immigration Act) the new regime allows for little discretion on the part of immigration officials adjudicating applications.  The extensive policy regime which existed before 8 April 2003 has now been replaced by a realm of law which is incomparably open and transparent, and balanced in the manner in which the tenets of fair administrative justice and the bill of rights enshrined in South Africa’s Constitution are incorporated. Back to the top

What division of government is responsible for the administration of immigration rules and for the processing of temporary and permanent residence applications?

All temporary residence permits, as well as applications for permanent residence, are processed and adjudicated by the Department of Home Affairs. Applications for permanent residence are adjudicated under the auspices of the Regional Director in the particular provincial region the applicant indicates he intends residing or working. 

However, the Minister of Home Affairs is vested with the power to grant special permanent residence exemptions, on recommendation of the Director-General of the Department.  Temporary residence applications, including work permit applications, submitted at South African mission abroad or usually adjudicated at such level without reference to South Africa. Back to the top 

How long is a temporary work permit valid?

A work permit may be valid for any period up to three calendar years, depending on the period of the employment contract.  However, if the work permit holder does not wish to apply for permanent residence, she may apply for extensions to her work permit every three years, as necessary.  Extensions should be granted if the employer continues to file obligatory certifications as required by statute and regulation.  However, quota work permits automatically lapse should the applicable levy and statutory filings not be timeously submitted on a yearly basis. Back to the top

Can temporary and permanent residence applications be filed in South Africa?

All temporary and permanent residence applications may be filed in South Africa itself. Nationals of countries requiring visas to enter South Africa may apply for visas to enter South Africa for holiday purposes, and then once entry is obtained, applications for an temporary (including study, work, business) and permanent residence applications may be submitted locally. This rule differs considerably from the restrictions which applied under the now repealed Aliens Control Act – applications for permanent residence could not be submitted in South Africa by applicants in possession of visitor’s permits (until the implementation of a de facto lifting of the restriction in late 2002). Back to the top

How long does it normally take for a temporary and permanent residence applications to be adjudicated?

Current Immigration Regulations provide that the Department of Home Affairs shall endeavour to adjudicate and render its decisions in temporary (including work, study and business) permit and permanent residence applications within 30 days of filing. This rule should apply regardless of whether the application is filed abroad at a South African mission or in South Africa itself.

However, the “endeavoured” time-frame of 30 days is in practice exceeded should staff shortages and large application backlogs exist at the particular Home Affairs office or foreign mission has an impact on administrative efficiencies.  The decision-making time-frame also depends on whether the foreign mission involved refers an application to Home Affairs Headquarters in Pretoria in cases where no delegated powers exist to adjudicate the application in question or if a question of policy arises.

Intra-company transfer work permits, on the other hand, which are filed for abroad take approximately no longer than 5 - 7 business days, as this was the practice under the Aliens Control Act.

On the other hand, permanent residence applications usually take somewhat longer to process, depending on the South African Regional Office at which the application is considered.  In our experience permanent residence applications should be expected to be fully adjudicated within 6 months or in less time.  Back to the top

What is the degree of difficulty and typical probability of success of well-prepared temporary and permanent residence applications?

If an application complies with statutory and regulatory requirements it should succeed.  As with all administrative processes in South Africa and elsewhere, problems not related to the content of an application may arise from the inefficiencies or malfeasance of the officials involved in the acceptance or processing of an application.  But these risks can be managed and minimised. Back to the top

Is special consideration given to persons of certain nationalities?

No - South Africa's immigration system is based on the principle of "national treatment" and it does not discriminate by country of origin. Back to the top 

Can specialist immigration lawyers assist with the application process?

Specialist Immigration Lawyers play an important role in the process of ensuring that the paperwork content of applications comply precisely with the requirements of both statute and regulation. 

The Immigration Act and the Immigration Regulations, published from time to time, together constitute a large reservoir of finely drafted law.  Lawyers trained in statutory interpretation and experienced in the Government’s practical implementation of these provisions assist fundamentally in minimizing the risk of an application’s failure.

On a more practical level, the rendering and submission of documentation can be laborious and time consuming and interaction with officials at the Department of Home Affairs can at times be a most frustrating experience for those not used to it.  With regard to work, corporate and business permit applications, for instance, filings of documents and accountant’s certifications require to made with other organs of the South African Government, such as the Departments of Labour and Trade & Industry.  Immigration Attorneys will usually take responsibility for rendering these submissions on the applicant’s behalf and overseeing the entire compliance process.

From these perspectives, utilising the services of a specialist Immigration Lawyer can certainly add value to enabling a foreign national to achieve his or her immigration objectives in South Africa with the least hindrances and within the shortest possible time-frames. Back to the top