No clarity on scarce skills in country

The Immigration Act of 2002 (amended in 2004) creates the space for the importation of skills, stating that a new system of immigration control should ensure that “economic growth is promoted through the employment of needed foreign labour”.

The act in its current form allows for the use of different work permits to be issued, including a quota work permit for foreigners who fall in a category of scarce skills, an exceptional skills work permit, an intra-company transfer work permit, general work permits and corporate permits. In August 2011 amendments were published to the act that collapses the quota and exceptional work permit categories into one – a critical skills work visa. These amendments have not yet come into operation as a date has not been proclaimed by the president in the Government Gazette, which can only be done once the final regulations are received.

Chief Director of Permits at the Department of Home Affairs, Jack Monedi, told Moneyweb that he is hoping that this will be finalised in 2013. According to the Immigration Act the categories for quota work permits, still relevant until the amendments come into effect, and the number available should be determined by the Minister of Home Affairs “at least annually” by notice in the Gazette after consultation with the Minister of Labour and Trade and Industry.

It is therefore currently not clear whether the critical skills list in existence since 2009, the latest list gazette, still accurately reflects the skills needed by the country.

After the amendments from 2011 the Minister of Home Affairs should “from time to time” determine the critical skills or qualifications in the Gazette for the issuing of critical skills work visas. Monedi told Moneyweb that once the regulations are finalised and the amended act comes into effect five departments will look at the new critical skills list: Home Affairs, Labour, Higher Education, Trade and Industry and Economic Development. The amendments of 2011, however, clearly state that only the Minister of Home Affairs has the exclusive statutory power to make regulations including the making of the critical skills list.

Gary Eisenberg, specialist immigration lawyer, told Moneyweb that in his opinion the problem is not with the legislation, but with its implementation. “There is very little wrong with our law, but unfortunately it is invariably not the law we are talking about – it is the people, and the administrative process of implementation,” he said. He added that whether the lists of scarce skills, last published in 2009, actually gave a true reflection of the skills deficits in the country is open for debate as it was never part of a parliamentary debate or a public debate.

Most of the larger IT implementation companies – for example Deloitte, Accenture, Wipro etc – use intra-company transfer work permits. Kamal Ramsingh, leader of the Technology business with Deloitte South Africa, said that these permits are more viable.

Monedi said that Home Affairs is working to improve the implementation of the legislation and has already eradicated the 2010/2011 backlog in temporary residence permits. He said the target for an intra-company transfer permit to be finalised, for example, is eight weeks and since June 2012 the department has implemented daily adjudication of temporary residence permits. “We are now saying that if someone with critical skills is applying for a permit, it should not take long to finalise the permit as this could affect the economy,” Monedi said. He added that the department has not received any complaints about the possible inadequacy of the existing critical skills list.

• This article first appeared on Moneyweb on 14 January 2013.