Immigration South Africa - Julian Pokroy Immigration Law Attorneys

This article was first published in HR Future in April 2001

MIGRATION LAW IS NOW A
HUMAN RESOURCE FUNCTION

Migration law has become an essential function of any human resource department operating globally.

Rapid globalisation and South Africa's entrance into world markets, have seen an inflow of skills into South Africa. While the country continues to lose valuable skills, there are increasing numbers of highly skilled young people in the twenty-five to thirty-five year old age group are entering the country, sometimes on transfers and secondments and, more recently, on full work permits. Flowing from this, many of these young would-be immigrants are now applying for permanent residence permits in South Africa after having been in the country for a year of two.

The IT, banking and general entrepreneurial sectors have been the major beneficiaries of this trend, and hopefully other business sectors will benefit in the short to medium term. Because the inflow is far overshadowed by the outflow of skills, every application for a work permit from a well qualified non-resident should be treated as a high priority .

Red tape, frustration, delay and sometimes even confusion accompanies the various types of work and residence permit applications, resulting in unnecessary costs, delays and problems. The field of corporate work permits and immigration permits has consequently become a growth industry in South Africa, and whereas few HR practitioners had previously regarded migration law as part of their broader function, the task of dealing with and processing successful candidates coming into the country has started falling squarely on their shoulders.

While HR practitioners are by definition not migration lawyers, they are increasingly having to deal with the migration/relocation functions. The statutory provisions of the Aliens Control Act 1991 (as amended) in fact provides that only a practising attorney or registered migration agent or the applicant may lodge, enquire and uplift any residence permit. The benefits of doing the job properly, on the other hand, are enormous. A properly prepared, methodical and precisely evaluated application, channelled in the proper way would make things a lot easier.

Because the processes involved in managing the work permit and residence permit applications are highly technical, they have virtually spawned a specialised HR function. HR Managers whose companies are recruiting in the international arena are now having to deal with a whole new spectrum of functions not ordinarily previously regarded as part of their job descriptions. They are now having to become au fait (and possibly an expert) on issues such as:

- Structuring of remuneration scenarios for expatriates; - Advising on all aspects of relocation; - Complying with the advertising requirements of Department of Home Affairs and Department of Labour access; - Preparing work permit/residence applications from inception to finality; - Dealing with the residence permits of expatriate spouses and children; - Evaluation of qualifications of expatriates; - Orienting or counselling expatriates prior to, during and after the relocation process.

To complicate matters, policy changes from the Department of Home Affairs drastically affect each aspect of planning, and a failure to deal with each part of the process properly can cause inordinate delays and cost a small fortune. All applications for temporary residence must be lodged in the country of last residence of the applicant and the outcome awaited in that country. This process could take six to twelve weeks and longer if botched. Candidates can therefore find themselves kicking their heels in their home countries, waiting for the red tape to be sorted out. The danger here is that, as often happens, candidates lose interest in the position.

Despite sensationalist reporting in the media about the minefields surrounding the obtaining of work permits, the reality at the coalface is somewhat different. There has been a gradual upturn in service delivery at several levels by the Department of Home Affairs and, whilst the Department has a long way to go in this respect, it has been encouraging to see a higher level of efficiency and service delivery, specifically in the work permit sections over the last eighteen months. The Department has become more conscious of the Constitutional implications of the Aliens Control Act and numerous Constitutional and High Court decisions of late have drastically influenced the way that applications are being dealt with at all levels.

Julian Pokroy is an admitted Attorney of the High Courts of South Africa, Lesotho and Botswana, Chairman of the Immigration Law Committee of the Law Society of Transvaal, Chairman of the Immigration Policy Working Group of the South African Chamber of Business (SACOB), Chairman of the Social Affairs and Labour Policy Committee of the Pretoria Chamber of Business with focus on Immigration/Migration issues and a Member of the Business South Africa (BSA) Task Group on Migration. He has practiced immigration law since 1970.

Readers wishing to have specific migration matters addressed in this column can email the author at: jpokroy@iafrica.com