1 month ago
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Claudia Pizzocri is CEO at immigration and citizenship law firm Eisenberg & Associates.
The November 2021 announcement made with no notice by the Department of Home Affairs (DHA) not to extend the Zimbabwe Exemption Permits (ZEP) forced hundreds of thousands of Zimbabweans to scramble for visa options they might qualify for in terms of the Immigration Act.
Applications to waive stringent regulatory requirements otherwise applicable to general work visa applications skyrocketed, further deteriorating the processing of applications already affected by the backlog.
About 176,000 ZEP holders with established lives in South Africa suddenly found themselves crippled by uncertainty. We estimate that at the time fewer than 20% of ZEP holders qualified to apply for “mainstream” visas such as critical skills work visas, spousal-based visas or relative visas. Many of those applications remain pending with the DHA as part of the persisting backlog.
This figure does not take into consideration immediate family members such as dependent foreign spouses and children legally admitted and residing in South Africa on visitor visas to accompany the ZEP holder, or on study visas.
In the absence of viable alternatives, all of them would have had to leave South Africa or choose to become illegal foreigners. The latter option created a cycle of zero progress in the 15-year containment process that began with the dedicated amnesty programme (DZP) implemented in 2009.
The DZP programme allowed for Zimbabweans with clean criminal records and evidence of employment in South Africa, and who were in possession of fraudulently obtained South African immigration documents, to forfeit the documents and avoid deportation, while allowing the department to capture their details towards a reliable census.
As a consequence, the lists of holders of DZP permits, followed over the years by the Zimbabwe Special Permit and ZEP holders, are up to date, proving the efficacy of the amnesty programme.
Employers and businesses across South Africa have, since 2021, faced the dilemma of how to deal with the legal limbo of which they were forced to be an integral part in light of the years invested in growing valuable resources and trust with their Zimbabwean employees.
The vast majority of ZEP holders have since been stuck in limbo. One blanket extension after another was administered as a placebo, while litigation ensued in the South African courts.
The Helen Suzman Foundation’s championing of the rights of ZEP holders to fair administrative justice led to the Constitutional Court judgment of 18 June 2024 that dismissed then minister Aaron Motsoaledi’s application for special leave to appeal.
It upheld the high court finding that the minister’s decision not to extend the ZEP permits was procedurally unfair and infringed on the constitutional rights of ZEP holders. The Constitutional Court confirmed that Motsoaledi had failed to conduct the fair notice and comment process, thus his decision was uninformed and procedurally irrational.
The court gave holders of expired ZEPs until 29 November 2024 to apply for new one-year exemption permits. The one-year reprieve allows for due process and consultations to take place.
In the background, all along, fraudsters preyed on the most vulnerable, taking advantage of the rising uncertainty and desperation and selling documents to comply with the stringent requirements.
As a consequence, many ZEP holders submitted general work visas and waiver applications blindly, with very little understanding of the real prospects of success, while some have succumbed once again to fraud.
General work visa applications require the employer to apply to the Department of Employment and Labour (DEL) for a certification to confirm to the DHA directly whether there are suitably qualified South African candidates for the position, and that the foreign applicant has the necessary skills and qualifications for the job.
The reality is that since 26 May 2014, with the amended Immigration Act coming into effect, it has been almost impossible to apply for and legitimately obtain a general work visa because about 90% of the time the DEL, which is extremely protective of the South African labour market, refuses to issue the certification.
This is the forbidding reality that caused our law firm to cease, as of 2016, to offer professional services in respect of general work visas unless they were in relation to specific sectors of employment.
Our stance, as an established law firm specialising in South African immigration, is a revealing indicator of the challenges that have affected not only ZEP holders, but equally to many foreign employees who fail to pass muster with the critical skills list, despite having accrued years of longevity in their roles in South Africa.
For instance, as of the coming into effect of the amended critical skills list of 2022 and pending the publication and implementation of the much-anticipated point system provided for in the White Paper on Citizenship, Immigration and Refugees, many foreign doctors (medical officers) working in South African public hospitals who do not hold a master’s degree (equivalent to an NQF level 9) in their field of specialisation have been unable to renew their work visas.
By signing and publishing Immigration Circular No 7 of 2024 on 6 August 2024, newly appointed Home Affairs Minister Leon Schreiber has literally nipped the costly three-year debate surrounding ZEP extensions in the bud, possibly avoiding a full-blown worsening disaster.
The circular supports working ZEP holders to apply to waive the DEL recommendation and the SA Qualification Authority evaluation requirements necessary to support general work visa applications, as otherwise required in terms of sections 18(3)(a) and (b) of the immigration regulations.
This circular opens a legitimate door to a viable process to apply for waivers and general work visas for those ZEP holders who are legitimately employed in South Africa and whose employers are willing to support these applications.
Retention of skills and resources already employed in South Africa should be treated as a valuable objective as much as the attraction of additional critical skills from overseas, and should be promoted. For years the South African economy and employers have battled low employee retention rates, and at times the “brain drain” phenomenon.
Research has also shown that nearly half of young South African professionals are unhappy in their jobs and are usually looking to change jobs within a year. Any HR recruiter can confirm that the most common thread in the profiles of South African applicants under 30 in the job market today is “job-hopping” and that CVs rarely demonstrate long-term commitment to any position.
Considering that retention of skilled and trained professionals and labour is deemed one of the major reasons for the unsteady growth of the South African economy, Schreiber’s decision – which will hopefully not be withdrawn under antagonistic pressures to maintain the irrational status quo – is extremely welcome and gives some hope to thousands of families and employers across South Africa.
This same approach should guide the direction of the department’s decision-making in implementing further much-needed changes.
As the recent past has shown, ministerial exemptions and immigration directives can be withdrawn with no notice. Therefore, the reliability of this “safe passage” to mainstream general work visas for ZEP holders may entirely rely on the longevity of the government of national unity Cabinet.
Perhaps as never before, the Department of Home Affairs needs a constant and determined gardener, a supportive environment and a favourable climate. DM
