MMIGRATION (PERMANENT RESIDENCE) POLICY

INDEX

1. General remarks about immigration to South Africa.

2. What are the basic immigration requirements / principles?

3. Who considers immigration applications and how are they considered?

4. What is the role of the Department of Home Affairs in the immigration process?

5. In terms of which legislation are immigration applications considered?

6. Where does one apply for an immigration permit?

7. May someone else apply on behalf of the prospective immigrant?

8. What does it cost to apply? When must one pay? What does the Department of
Home Affairs do with the money?

9. How long does it normally take to process immigration applications?

10. Which immigration categories are available and what are the individual
requirements applicable thereto?

11. May one choose the preferred immigration category?

12. May one apply as an individual person if one’s family/spouse do/does not
want to immigrate to South Africa?

13. Must one attend an interview before one’s application will be accepted? Where?
When?
14. May a prohibited person apply for an immigration permit in South Africa?

15. Are there special arrangements in place with regard to nationals of the
People’s Republic of China?

16. Who issues the immigration permit?

17. If one’s immigration permit has been approved, when must one enter the
Republic of South Africa? What happens if one cannot enter timeously? What
will it cost to have the validity period of the permit extended?

18. Are reasons provided if the application is rejected? Does one have a right to
appeal?

19. Do foreigners married to South African citizens or permanent residents enjoy
special privileges or rights?

20. What happens if one has to settle in another country after one has
obtained an immigration permit?

21. What happens if one changes one’s occupation after an immigration permit
has been obtained?

22. Can an immigration permit be withdrawn?

23. IMPORTANT NOTE

IMMIGRATION (PERMANENT RESIDENCE) POLICY

1. GENERAL REMARKS ABOUT IMMIGRATION TO SOUTH AFRICA

1.1 The Republic of South Africa can accommodate only a certain number of immigrants. There are valid reasons for this. In the first instance South Africa has a vast reserve of unskilled and semi-skilled workers who are entitled to employment opportunities and to an economically viable lifestyle for themselves and their families. For this reason no one in the unskilled and semi-skilled categories will normally be accepted as an immigrant worker in South Africa.

1.2 Because of the considerable need for the creation of job opportunities for South African workers, as well as for their training and development, it will be understood and appreciated that the RSA cannot afford to grant permits for immigration to persons who are not seriously committed to immigrating to the country permanently and to investing their assets, skills, knowledge and experience for the benefit of themselves and the people of South Africa.

2. WHAT ARE THE BASIC IMMIGRATION REQUIREMENTS / PRINCIPLES?

2.1 The present immigration policy places emphasis on the broadening of the economic base of South Africa by concentrating especially on the obtaining of those immigrants who are in a position to render a meaningful contribution in this regard.

2.2 The South African immigration policy is embodied in the Aliens Control Act, 1991 (Act No 96 of 1991), which prescribes certain requirements, which are to be met by an applicant who wishes to immigrate permanently to South Africa. The requirements are:
* the applicant must be of good character;
* he/she must be a desirable inhabitant;
* he/she must not be likely to be harmful to the welfare of the Republic of South Africa; and, most important;
* he/she must not follow an occupation in which there are already a sufficient number of persons available to meet the requirements of the country.

2.3 In addition to the Aliens Control Act and administrative immigration policy, the Department also takes note of other relevant legislation.

3. WHO CONSIDERS IMMIGRATION APPLICATIONS AND HOW ARE THEY CONSIDERED?

3.1 The consideration of immigration applications is a matter assigned to the various regional committees of the Immigrants Selection Board, an autonomous statutory body appointed by the Minister of Home Affairs. These committees consider each application on its merits and on an individual basis, as provided for in the policy and the Aliens Control Act, 1991. Immigration applications are considered by the relative committee in the province where the prospective immigrant will be settling. Committees of the Board may make the approval of applications subject to any condition(s) they may deem fit – section 25(3) of the Aliens Control Act, 1991.

3.2 The Board is the only body in South Africa empowered by law to confer or withhold the right to permanent residence.

3.3 In particular, the committees take cognisance of the legal provision that places an obligation on them to ensure that only those applications are approved where the applicants will follow occupations for which a proven demand exists in the RSA. The overriding consideration should always be the protection of the inherent rights of South African citizens or permanent residents to employment opportunities, which may exist in the country.

3.4 The ongoing unfavourable position in South Africa as regards large-scale unemployment and a downturn in the economy, together with an increasing demand for socio-economic services and facilities make it all the more essential that a policy of careful selection with due regard to the existing stringent requirements should be pursued.

4. WHAT IS THE ROLE OF THE DEPARTMENT OF HOME AFFAIRS IN THE IMMIGRATION PROCESS?

4.1 Officials of the Department of Home Affairs (or Foreign Affairs, as the case may be) are, in terms of section 24(8) of the Aliens Control Act, 1991, only responsible for administrative functions in so far as immigration applications are concerned. The administrative functions include, inter alia, that officials of the Department of Home Affairs will accept the complete immigration application and relative tariff, conduct the prescribed interview, process the application by requesting outstanding documentation and interdepartmental reports, submit the application to the relative Immigrants Selection Committee, convey the decision etc. Officials are not allowed to accept incomplete immigration applications. Failure, or unwillingness to submit the applicable documentation/information, may result in non-acceptance of the application. The onus to obtain and submit all the required documentation/ information rests with the applicant him/herself.

5. IN TERMS OF WHICH LEGISLATION ARE IMMIGRATION APPLICATIONS CONSIDERED?

The Aliens Control Act, 1991 (Act No 96 of 1991), and in particular section 25 thereof.

6. WHERE DOES ONE APPLY FOR AN IMMIGRATION PERMIT?

6.1 Regulation 14(2) promulgated under the Act states that an application for an immigration permit must be made in the country or territory of which the applicant validly holds a passport, or in which he or she normally lives and to which he or she returns regularly after any period of temporary absence. Applications are to be submitted at South African Missions abroad. Prospective immigrants must also keep in mind section 23(a) of the Aliens Control Act, which states:

“No alien shall enter or sojourn in the Republic with a view to permanent residence therein, unless he or she is in possession of an immigration permit issued to him or her in terms of section 25”.

6.2 The following categories of prospective immigrants may apply in South Africa:
(a) Holders of valid work permits.
(b) Officially married spouses and dependent children of South African citizens or permanent residents.
(c) Destitute, aged or infirm persons who, with the Department’s permission, are sponsored for immigration purposes by their immediate family members who are permanently and lawfully residing in South Africa.

6.3 Prospective immigrants in (b) and (c) above must be residing legally in South Africa on valid temporary residence permits if they wish to apply in the Republic. Applications may be submitted at the person’s nearest Regional or District Office of the Department of Home Affairs. In this regard please also refer to paragraph 14.

7. MAY SOMEONE ELSE APPLY ON BEHALF OF THE PROSPECTIVE IMMIGRANT?

Regulation 18 stipulates, inter alia, that no person shall apply on behalf of an alien for an immigration or temporary residence permit as contemplated in section 25 or 26 of the Act unless the application is accompanied by a written power of attorney. The prescribed form BI-29E can be obtained from the nearest office of the Department. Any person other than an attorney who is making or intends making it his or her business to apply on behalf of any alien for an immigration or temporary residence permit referred to in section 25 or 26 of the Act, shall not continue or commence such business unless he or she is registered with the Department as an agent in terms of this regulation. No person shall be registered unless he or she is a South African citizen. Even though a person may be appointed to apply on behalf of a prospective immigrant, the latter still has to undergo a compulsory interview. More about this in paragraph 13.

It is important to note that the Department of Home Affairs provides the same service free of charge. To make use of the services of an immigration agent/consultant is one’s personal choice and the Department of Home Affairs will not accept any responsibility. Whilst the Department respects the right of an applicant to use the services of an immigration agent/consultant, it must be made clear that the aforementioned persons are not employees of the Department of Home Affairs.

8. WHAT DOES IT COST TO APPLY? WHEN MUST ONE PAY? WHAT DOES THE DEPARTMENT OF HOME AFFAIRS DO WITH THE MONEY?

8.1 An administrative fee of R13 282 ($1 155) is payable in respect of a formal application for (an) immigration permit(s), per individual or per family. This fee is not refundable irrespective of whether an application is approved or not.

8.2 The fee is payable upon submission of the immigration application. The RSA amount is applicable when the service is rendered within the RSA, whilst the foreign tariff (if not in US dollar, then the corresponding amount in the local currency) is applicable for services rendered outside the Republic by South African Missions.

8.3 The fees represent administration costs involved with the processing of applications. Prescribing fees is international practice and in line with Government policy with regard to self-compensation and user charges for services rendered. The introduction of Migration fees was approved by the South African Cabinet during 1995.

8.4 The money is paid over to the Department of Finance on a regular basis and forms part of State income. Home Affairs therefore does not directly benefit from the tariffs paid by prospective immigrants.

9. HOW LONG DOES IT NORMALLY TAKE TO PROCESS IMMIGRATION APPLICATIONS?

Provided that the application is straightforward, has been correctly filled out and all the supporting documents are attached, the Department will aim to process applications within six (6) to twelve (12) months. Problematic applications may take up to eighteen (18) months to be processed.

10. WHICH IMMIGRATION CATEGORIES ARE AVAILABLE AND WHAT ARE THE INDIVIDUAL REQUIREMENTS APPLICABLE THERETO?

10.1 WORKERS

* The applicants normally fall within the age group of 18 to 51. In respect of persons over the age of 51 years, additional documentation may be requested.
* He/she must be in possession of a permanent offer of employment made by a South African registered company.
* The position offered must be commensurate with the applicant’s qualifications and experience.
* The prospective employer must motivate why the position offered couldn’t be filled by South African citizens/residents or why such persons cannot be trained to fill the position.
* The prospective employer must also submit proof such as press clippings of advertisements (and a receipt to confirm that this has been done), placed over a period of at least one (1) month in national newspapers, that the post offered to the applicant has been advertised and that no suitable South African applied, unless it is obvious that a South African would be unsuitable for the post e.g. a key managerial post in the South African branch of an international firm.
* Professionally qualified persons must register with the appropriate South African bodies.
* Persons on temporary work permits applying for immigration permits inside the Republic, must submit proof of a satisfactory work record whilst having been employed in the Republic.
* The administrative immigration application fee of R13 282 ($1 155) is payable.
* May apply in South Africa if in possession of a valid work permit issued in terms of section 26(1)(b) of the Act.

10.2 FAMILY REUNION SCHEME

* A person must be economically active but unable to submit a permanent offer of employment or qualify as a worker in his/her own right.
* Family members (restricted to parents, brothers and sisters) must be South African citizens or permanent residents.
* Family members undertaking to assist the applicant(s) may not have conditionally approved immigration permits, or may only undertake once they have complied with the conditions.
* Family members in the Republic must undertake on form BI-1609 to assist the applicant and his/her family financially, if necessary, for as long as they may be in the Republic or until the breadwinner of the sponsored family is economically active, whichever may be earlier.
* Offers of employment that may be accepted under this category, are in occupations not normally acceptable such as counter workers, shop assistants and clerks/sales workers, i.e. persons who would not qualify to be granted immigration permits under the worker category.
* An administrative immigration application fee of R13 282 ($1 155) is payable.
* Must apply abroad.
* Before an immigration application under this category will be accepted, a preliminary investigation takes place to ascertain whether the relative person in fact qualifies to be considered in the family reunion category.

10.3 SPOUSES AND DEPENDENT CHILDREN

* This category applies to cases where the spouse is a South African citizen or permanent resident of the RSA who can submit proof that he or she is legally married and that he or she has sufficient means to maintain his/her spouse and, if applicable, any dependent children in South Africa.
* The administrative immigration application fee of R13 282 ($1 155) is not payable.
* May apply in the RSA if in possession of a valid permit issued in terms of section 26(1) of the Act. Refer to paragraph 6.2 and 6.3, please.
* Persons who are engaged to South African citizens or permanent residents can be divided into two groups viz. those who are considered to be acceptable in their own right and those who are not acceptable in their own right and whose applications may be considered by the committees of the Immigrants Selection Board on submission of a marriage certificate.
* An administrative immigration application fee of R13 282 ($1 155) is payable, if the person is not officially married to a South African citizen or permanent resident.
* Fiancées must apply abroad.]

10.4 SPONSORED PERSONS

* A person who is a destitute, aged or infirm member of the family, may be sponsored by a person permanently and lawfully resident in the Republic, provided such a person is able and willing to support the prospective immigrant in every respect required, on a life long basis.
* The administrative immigration application fee of R13 282 ($1 155) is not payable.
* May apply abroad or in South Africa, if in possession of a valid section 26(1) permit.
* Before an immigration application under this category will be accepted, a preliminary investigation takes place to ascertain whether the relative person in fact qualifies to be sponsored.

10.5 RETIRED PERSONS

* Persons who in their own right qualify to emigrate to South Africa as retired persons, must submit documentary proof of their financial assets readily transferable to the RSA.
* The extent of the amount thus transferable and/or the assurance of a continued income of sufficient extent from abroad are among the factors taken into account.
* An administrative immigration application fee of R13 282 ($1 155) is payable.
* Must apply abroad.

10.6 FINANCIALLY INDEPENDENT PERSONS

To qualify under this category, successful applicants must: –
* Transfer a guideline amount of not less than R1 500 000 to the Republic of which R700 000 must be invested in the South African economy for a period of three years, either as a deposit with a financial institution or by any other means such as the acquisition of immovable property. After three years of being granted an immigration permit the immigrants must show proof that this requirement has been complied with, failing which their immigration permits may be withdrawn.
* Refrain from engaging in employment or establishing own businesses without the approval of the Department of Home Affairs.
* Notify the Department of Home Affairs of any change of address during the three-year period.
* The administrative immigration application fee of R13 282 ($1 155) is payable.
* Must apply abroad.

10.7 OWN BUSINESS

Persons who wish to establish own businesses in the Republic will, in addition to providing sufficient funds for their maintenance and that of their families, be required to –
* Transfer such minimum amounts as may be determined by the committees of the Immigrants Selection Board, with or without consultation of other bodies or instances, as being sufficient to establish such businesses, taking due consideration of their nature and extent; and
* submit to the Department of Home Affairs the following documentation after twelve months of establishment of the businesses or after the immigration permit has been issued:
(i) audited financial statements in order for the viability of the businesses to be assessed;
(ii) documentary evidence that, since the establishment of the businesses or since the immigration permit has been issued, at least two South African citizens or permanent residents excluding family members, have been appointed and are still in service; and
(iii) documentary evidence that the amounts, as determined by the above-mentioned committees of the Board, have been utilised for the intended purposes.
* The administrative immigration application tariff of R13 282 ($1 155) is payable.
* Unless the prospective immigrant holds a valid work permit to conduct the said business, the application must be submitted abroad.

10.8 OWN BUSINESS IN PARTNERSHIP OR CO-OPERATION

* Those who intend to enter into business with one or more persons or to continue with an established business (such as a proprietary limited or limited company as well as close corporations or partnerships), must after twelve months from their entry into such ventures or after the immigration permit has been issued, submit evidence that their involvement resulted in a substantial contribution towards the South African economy or the full-time employment of at least two South African citizens or permanent residents of the Republic, excluding family members.
* The administrative immigration application tariff of R13 282 ($1 155) is payable.
* Unless the prospective immigrant holds a valid work permit to conduct the said business, the application must be submitted abroad.

11. HOW IS THE APPLICABLE IMMIGRATION CATEGORY DETERMINED?

The classification of prospective immigrants in the appropriate immigration category is done by officials of the Department of Home Affairs or Foreign Affairs, as the case may be, taking due cognisance of a prospective immigrant’s background and other relevant information.

12. MAY ONE APPLY AS AN INDIVIDUAL PERSON IF ONE’S FAMILY/SPOUSE DOES/DO NOT WANT TO IMMIGRATE TO SA?

Various possible scenarios exist, the bottom line of which would be that all family members not applying for whichever reason, must be mentioned right from the start.

a. Regional committees of the Immigrants Selection Board will consider the immigration applications of divorced or legally separated persons, provided proof of the divorce decree or legal separation, stating the conditions thereof, has been submitted.

b. In cases where a couple has been estranged, the immigration application will be considered, provided that the partner who is not applying for permanent residence, submit a sworn affidavit/ solemn declaration confirming the estrangement, indicating that he/she is aware of the application, has no objection to the other party (and children, if applicable) settling in the Republic and is satisfied with the arrangements made in regard to his/her and/or the children’s maintenance. Furthermore, should such an estranged spouse who remains abroad at any stage decide to join the spouse already in the Republic, the application will, for immigration permit purposes, be considered on its own merits. Applicants must acknowledge this fact in writing.

c. Should there not be estrangement or divorce be at stake, but one of the two spouses would not be interested in relocating to South Africa, the following measures will apply:
* A sworn affidavit from the party remaining behind stating that s/he is not interested in immigrating to South Africa and the reason therefor, but that s/he has no objection to the other marital partner submitting an immigration application;
* Should any dependent children be involved, the affidavit/solemn declaration must indicate which of them, if any, will accompany the immigrating mother/father, as well as arrangements made for their maintenance. Proof of sufficient maintenance arrangements may be requested.
* The marital partner remaining abroad must acknowledge that s/he has noted the fact that if at any time s/he wishes to permanently join the person(s) already in the RSA, a formal immigration application must be submitted.

12.4 In all cases the sworn affidavit/solemn declaration must be signed by both spouses in the presence of a Commissioner of Oaths.

13. MUST ONE ATTEND AN INTERVIEW BEFORE ONE’S APPLICATION WILL BE ACCEPTED? WHERE? WHEN?

Yes! Prospective immigrants are subjected to a personal interview conducted by an official of the Department of Home Affairs (any Regional or District Office) or the Department of Foreign Affairs, as the case may be, depending on where the immigration application has to be submitted. The interview takes place once the prospective immigrant has completed all prescribed documentation.

14. MAY A PROHIBITED PERSON APPLY FOR AN IMMIGRATION PERMIT IN SOUTH AFRICA?

No. An alien residing on a permit issued in terms of section 41 of the Aliens Control Act, i.e. a temporary permit issued to a prohibited person, may not apply for an immigration permit from within South Africa. Such a person must depart from South Africa, apply for an immigration permit from his/her country of origin and await the outcome abroad.

15. ARE THERE SPECIAL ARRANGEMENTS IN PLACE WITH REGARD TO NATIONALS OF THE PEOPLE’S REPUBLIC OF CHINA?

It is to be pointed out that any national of the People’s Republic of China who wishes to proceed to South Africa for the purpose of business negotiations, feasibility studies or to establish a business or take up employment with a South African company which has been financed, or partly financed, with foreign capital emanating from Mainland China, should in the first instance approach the Chinese Ministry of Trade and Economic Co-operation (MOFTEC). Only after the approval of the Ministry has been obtained and the relevant applications have been lodged with the South African Embassy in Beijing, will the committees of the Immigrants Selection Board be able to consider the admission of the applicants to the country.

16. WHO ISSUES THE IMMIGRATION PERMIT?

Immigration permits are issued by officers at Regional Offices of the Department of Home Affairs. To expedite the finalisation of the process, the Regional / District Office where the application was processed, will in applicable cases inform the relative South African Mission abroad that the application has been approved and that the permit(s) will soon follow per diplomatic bag.

17. IF ONE’S IMMIGRATION APPLICATION HAS BEEN APPROVED, WHEN MUST ONE ENTER THE REPUBLIC OF SOUTH AFRICA? WHAT HAPPENS IF ONE CANNOT ENTER TIMEOUSLY? WHAT WILL IT COST TO HAVE THE VALIDITY PERIOD OF THE PERMIT EXTENDED?

17.1 Once an immigration permit has been granted, permanent residence status must be taken up within six months with the intention to settle permanently in South Africa. If any extension of this period is applied for, due cognisance will be taken of the reasons for such request. If the approved immigrant did not enter the Republic of South Africa within the prescribed period with the intention to settle permanently, the immigration permit will lapse in terms of section 25(7) and 25(8) of the Aliens Control Act, 1991 (Act No 96 of 1991) and may be withdrawn.

17.2 The validity period of permits is not extended in excess of six (6) months. If a person is unable to arrive in the Republic within the extended period, (s)he must again apply for further extension before the expiry of the new date of validity. A fee of R1 012-00 ($88) per individual is payable for every extension of the validity period of the permit.

18. ARE REASONS PROVIDED IF THE APPLICATION IS REJECTED? DOES ONE HAVE A RIGHT TO APPEAL?

Yes to both questions. Reasons for rejection are provided in writing when the decision is conveyed. The person is informed about his/her right to appeal, the time frame within which it must be done and the procedures to be followed in terms of Regulation 15 under the Act.

19. DO FOREIGNERS MARRIED TO SOUTH AFRICAN CITIZENS OR PERMANENT RESIDENTS ENJOY SPECIAL PRIVILEGES OR RIGHTS?

No. Each immigration application is considered on its merits and the fact that a prospective immigrant is married to a South African citizen does not automatically guarantee residence status and does not render one immune to South African immigration laws.

20. WHAT HAPPENS IF ONE HAS TO SETTLE IN ANOTHER COUNTRY AFTER ONE HAS OBTAINED AN IMMIGRATION PERMIT?

20.1 Should a person who obtained permanent residence leave South Africa for a period of five years or longer, he/she will lose his/her right to permanent residence. However, if such a person has to leave the country for whatever reason, (s)he is advised to correspond with the Department of Home Affairs in order to explain the situation. The Department can then determine what effect the period of absence from the country will have on the person’s permanent residence status.

20.2 If the person works for a South African registered company and the company sends her/him abroad, it will not influence her or his permanent residence status in the RSA.

20.3 If the applicant is working on a contract basis and he/she will spend more than (5) five years abroad, the Department must timeously be notified.

20.4 If the applicant is married to a South African citizen, (s)he will not lose his/her right to permanent residence status while (s)he is married to, and living with a South African citizen (Section 31(1) of the Aliens Control Act, 1991).

21. WHAT HAPPENS IF ONE CHANGES ONE’S OCCUPATION AFTER AN IMMIGRATION PERMIT HAS BEEN OBTAINED?

21.1 The Minister of Home Affairs may withdraw an immigration permit, if the holder of such a permit changes her/his occupation within a period of three (3) years after the permit has been issued, without the necessary consent. Applications for the change of occupation are subject to the payment of the amount of R8 245-00 ($717).

21.2 There is a difference between a change of occupation and a change of employer. Should a person change his/her employer after having been granted an immigration permit, but still be employed in the same profession or field of activity, this would not be regarded as a change of occupation.

22. CAN AN IMMIGRATION PERMIT BE WITHDRAWN?

Yes. The Minister may withdraw an immigration permit issued in terms of section 25 and by notice in writing order the holder of such permit to leave the Republic within a period stated in that notice if: –

(a) the application for such a permit contains incorrect information; or
(b) the holder of such a permit or his or her agent has furnished incorrect information in connection with that application or any application for the extension of the validity of such permit; or
(c) the said holder fails to comply with a condition imposed under section 25(3); or
(d) the said holder, within a period of three years from the date of issue of the permit, without the consent of the Minister engages in the Republic in any occupation other than the occupation stated in the permit to be his or her occupation; or
(e) the said holder obtained the permit on the basis of a marriage entered into less than two years prior to the date of issue of the permit, and such marriage is judicially annulled or terminated within two years subsequent to the said date, unless the Minister is satisfied that such marriage was not contracted for the purposes of evading any provision of this Act; or
(f) it appears to the satisfaction of the Minister that the said holder did not enter the Republic for the purpose of permanent residence therein, and upon the expiration of the period mentioned in the said notice, the permit shall become null and void.

23. IMPORTANT NOTE

23.1 Please note that changes relative to policy matters/legislation/regulations may eventuate at any time subsequent to the above data. It is the responsibility of the reader of this document to make sure at all times that the information contained in it is still relevant.

23.2 It is therefore suggested that enquiries be made at regular intervals to the nearest office of the Department in the RSA, South African Missions abroad or directly to the Director-General: Home Affairs (for attention sub-directorate: Permanent Residence), Private Bag X 114, Pretoria, 0001. Alternatively, the Department of Home Affairs’ website may be visited at www.home-affairs.gov.za .

DEPARTMENT OF HOME AFFAIRS
PRETORIA
APRIL 2002