Authored by: Marisa Jacobs, Head of Immigration and Mobility at Xpatweb
The work permit process can be time consuming and even painful, depending on your permit categorisation. One question often asked is whether an expatriate should consider a Permanent Residency application sooner, effectively lifting the expatriate’s status above the noise of normal work permit requirements. We found that there can be a significant upside however, depending on the complexities there may also be adverse consequences.
Since the release of the White Paper for International Migration in South Africa last year, more and more expatriates are seriously considering applying for Permanent Residency before this category is permanently removed from South African immigration law.
Why Permanent Residency?
Permanent Residency allows the holder to live and work in South Africa unlimitedly and includes the right to work without restriction, engage in business, own property, study and do all activities a citizen is permitted to do except for voting in the South African elections. You may only do the latter once you have been naturalised as a South African citizen. Permanent Residency in South Africa also allows its holder maximum flexibility with regards to entry and exit through the country’s borders.
Where an expatriate and family hold this status, they no longer need to go through the work and residency visa process and for all practical purposes this means that the employer deals with a normal South African employee.
What does the Act say?
Permanent Residency is granted to a foreigner who can meet the criteria as set out in Sections 26 and 27 of the Immigration Act of 2002, as amended, and Regulations 23 and 24 respectively.
Section 26 is applicable to foreigners who have been residing in South Africa based on their work visas for a minimum period of five years and is also applicable to spouses and dependents of South African citizens or Permanent Residency permit holders.
Section 27 is applicable to foreigners who are in possession of a permanent work offer in South Africa, have exceptional skills and qualifications, intend to establish a business in South Africa, qualify as refugees, qualify as retired persons, are financially independent, are relatives (biologically or judicially adopted) of a South African citizen or Permanent Residency permit holder or have been in a spousal relationship with a South African citizen for more than 5 years.
A word of caution
Always keep in mind any adverse tax and exchange control considerations, meaning that whilst Permanent Residency may at first glance appear like a good idea from an entry perspective, from a holistic planning perspective, it may be considered a less favourable choice. This is where holistic consideration becomes important, i.e. the fiscal aspects and tax planning must be considered as part of the service.
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For more information on Xpatweb please visit: https://www.xpatweb.co.za/home/
Author: Marisa Jacobs, Director – Head of Immigration and Mobility at Xpatweb
How difficult is it really to obtain a work visa for a foreign skilled employee? In truth, extremely easy if you know what you need and how to go about it, but near impossible if you are inexperienced and make school boy errors. Here are some expert tips to help:
When an employee comes to render employment services in South Africa, make sure they get a valid short-term work visa. Do not take a chance and tell the immigration official this is only a business trip, when the purpose is work. It is easy to be compliant and not worth the risk. The process takes ten working days and the short-term visa is issued for three months, while it may be extended in South Africa for a further three months.
New foreign boss? Don’t stress
Getting a new boss from overseas is stressful enough, let alone making them think you are not competent in sorting out their work permit status and the family’s residency permits. Luckily, the intra-company transfer work visa is one of the quickest and cleanest visas to obtain. Just make sure you understand the rules and requirements upfront as one piece of incorrect guidance or supporting document, can put you back to square one. These take two months to obtain, end-to-end and where done effectively.
When you need that critical and rare skilled employee
What do you do when your business family just do not have an important skill that you need? There are some in the market, but they are rare and you just do not have the budget to attract and retain them?
The critical skill work visa route is a real game changer, mostly misunderstood and provides a brilliant and certain means to building a superior work force. You will be surprised to know the comprehensiveness of the qualifying skills. We have always been able to find a suitable category for a genuinely scarce skill in South Africa.
This category is also very attractive for the employer and expatriate. The employer gains a competitive edge on attraction and retention, as the visa is issued for the employer; whilst this category gives the expatriate the right to qualify in time for permanent residency in South Africa. One can rightly call this a win-win.
Do not make this crucial mistake
Stay away from the general work permit categories, except where you have a very large expatriate programme. This category has been made subject to an initial Department of Labour process, it has become virtually unobtainable. You will be promised an effective process, but after countless deadliness missed with impunity, you will still have no traction.
Waiving like a pro
The immigration laws of South Africa are very competently drafted legislation. This means that there are numerous special provisions which cater for situations which are unique and fail-safe clauses, which gives discretion where you need help, but need something special for your organisation. These include waiver provisions, which gives the department the right to waive certain legislative requirements.
Where you have a large project, or need to otherwise bring a large group of expatriates into South Africa, this is crucial for your expatriate programme.
The work visa process should not be an isolated one. The same way that all aspects of your family needs looking after, the fiscal planning for an expatriate cannot be in isolation with the work visa process. This includes contracting correctly as expatriates have different terms and conditions of employment, expert tax planning including international tax planning, exchange control and banking planning; and even catering for their employee benefits, as normal South African benefit programmes are mostly too expensive for them and also seldom suitable.
Photo caption: Marisa Jacobs
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